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Judgment
THIS appeal is directed against the order passed by the District Forum, Kasaragode, in O.P. No. 243 of 1995. The complainant is the appellant.
WE heard the Counsel for the appellant and the respondent. Briefly stated, the allegations in the complaint are as follows : The complainant is the registered owner of a lorry with Registration No. KA-19/2157. It was insured with the opposite party. The vehicle met with an accident on 7.7.1994. He submitted a claim on 9.7.1994 but the claim was not settled. According to the complainant he had to spend Rs. l,20,000/-for repairs. However, the opposite party did not settle the claim. It is in these circumstances the complaint was filed seeking a direction to the opposite party to pay Rs. 1,20,000/- which is for repair charges and another sum of Rs. 75,000/- as compensation.
The opposite parties filed version contending that inspite of repeated requests the complainant failed to produce the original permit of the vehicle, and what was produced was only a photocopy. On enquiry from the State Transport Authority, Bangalore, they were informed that the vehicle was not holding any valid permit during the time of the accident. Therefore, the repudiation of the claim was quite valid, and that they were justified in not settling the claim. The opposite parties relied on the clause in the policy that the policy covers only use under a permit within the meaning of the Motor Vehicles Act, 1988. The complainant urged that no permit is required when an empty vehicle meets with an accident after taken from the garrage after repair. The complainant contended that the permit was valid upto 16.2.1997 and the District Forum observed the genuineness of that document was disputed by the opposite party and still the original was not produced. It has also observed that the opposite party relied on the intimation received from the State Transport Authority, Bangalore, dated 7.7.1995 stating that the permit relating to the said vehicle was cancelled by that office on 23.3.1994 as per the proceedings given in the letter, which is evidenced by Ext. A4 and inspite of that, the complainant had not produced the original permit.
THE contention raised by the complainant that no permit is required at the time when the vehicle met with an accident as it was running empty after repair from garrage in the light of Section 66(3) of the Motor Vehicles Act, 1988 was not accepted by the District Forum. THE District Forum observed that Section 66(3)(p) refers to only vehicle taken to the garrage for repair and in this case accident took place when vehicle was taken out of garrage after repair and therefore that exclusion clause would not apply. Ext. A6 is the scene mahazar prepared by the police and that shows that the vehicle was running empty. However, the District Forum took the view that there is violation of clause relating to permit and dismissed the complaint. In this appeal, learned Counsel for the appellant challenged the finding. Sub-section (3) of Section 66(p) states that provisions of Subsection (1) shall not apply to any transport vehicle while proceeding for the purpose of repair. If strict interpretation is adopted, probably, the District Forum was right in holding that the complainant is not entitled to the benefit of this clause. However, learned Counsel has invited our attention to two decisions, one rendered by the Madras High Court in In re. T.V. Moidu and Another, AIR 1960 Madras 265 (V 47 C 87) and the other rendered by Allahabad High Court, State of U.P. v. Abdul Latif and Another, AIR 1963 Allahabad 229 (V 50 C 64). In the first case the Madras High Court observed as follows : "In these circumstances the contention of the learned Advocate Mr. Cehngalvarayan is that the provisions of Sections 42 and 123 of the Motor Vehicles Act have not been offended appears to be sound. Section 42 requires the use or permitting the use of transport vehicle contrary to the conditions of the permit. I have already pointed out how the term "use" is different from "driving" and is "in charge of". A study of the sections of the Motor Vehicles Act shows how the legislature was fully aware of these distinctions. That is why in Section 42(1) there is no reference to "driving" but only "using" and "permitting the use" of the vehicle. If the legislature had really meant, even the mere physical act of driving irrespective of using it, contrary to the conditions of the permit, it would have made it clear as it has done in Section 123 which had been reproduced above. The legislature has carefully confined Section 42(1) to "using" only because otherwise it would lead to logical absurdities. If a person moves a lorry outside his garage to his nearby pond where it has to be periodically washed, he could be run in under Section 42(1) of the Act. The law in the immortal language of Mr. Bumble may be an ass, but it cannot be so asinine as all that. The expression "to use" has unfortunately escaped judicial consideration in this country. The question of meaning of this expression was however, considered in connection with the Motor Vehicles (Construction and Use) Regulations, 1937 in Clifford v. Whittaker, 1942-1 KB 501, and while no question was directed at discovering who was the "person using" the vehicle, some point of guidance emerge. Counsel drew attention to the fact that other regulations use the expressions "to drive" and "to be in charge of" rather than "to use"; this is equally true of other road traffic offences. It is that, for example an offence "to use" a motor vehicle on a road without holding a driving licence, only to drive it in such circumstances. The implication then is that ''using'' is not the same as driving or being in charge of a motor vehicle. Analogies can be drawn from the English Gaming and Wagering Acts, where the offence of running or using a gaming house can only be committed by one who is the owner, occupier, or a person having the use of it, which means one who has to use as a licensee to carry on the business, and does not include a person who uses the place in the case of merely going in to avail himself of the business which happens to be carried on there: See Halsbury''s Laws of England, 3rd Edn., Vol. 18, page 192."
IN that view learned Judge held where an empty lorry was found at a place outside the route for plying and it was not in the course of business covered by the permit that it was a short-cut route the provisions of Sections 42 and 123 of Motor Vehicles Act could not be said to have been offended. IN the decision of Allahabad High Court, it was held that where an empty vehicle is driven on the road outside the route not covered by permit the driver would be guilty under Section 123 but the owner of the vehicle cannot be held guilty as there is well-defined distinction in the Act between driving and using a vehicle. Learned Counsel for the respondent has challenged the correctness of the view taken by a Single Judge of the Madras High Court in the above decision and it is urged that a mere driving or propelling a transport vehicle is using a vehicle, and therefore driving a vehicle without, or in contravention of the terms of, a permit is an offence. A close examination of the provisions of the Act will show that there is a clear distinction between using a vehicle in the sense of driving or pre-opelling it and using it for the purpose of carrying passengers or goods. Section 22 says : "No person shall drive any motor vehicle and no owner of a motor vehicle shall ca use or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with this Chapter and certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. The restriction against a driver is absolute and against an owner only to the extent of causing or permitting a vehicle to bed riven for the carrying passengers or goods. In other words, no person can drive a motor vehicle without a registration certificate while an owner cannot cause or permit a vehicle to be used for carrying passengers or goods. The distinction is further brought out by the provisions of Section 123(1) which says: ''Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 22 or without the permit required by Subsection (I) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable.....'' Although the words relating to an owner in Section 22 are "cause or permit the vehicle to be driven", a different language indicating the use of the vehicle with reference to its purpose has been used in Section 123. The liability of an owner for the use of a vehicle in contravention of the terms of the permit arises under Section 42(1) which reads: ''No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used........'' Consistent with the other provisions of the Act the word "used" in Section 123(1) can only mean the use of the vehicle for the purpose for which a permit is granted, namely, for carrying passengers or goods."
IN the instant case Ext. A6 mahazar clearly shows that the vehicle was empty and it has also come out the accident took place when the vehicle was taken from garage after repair. The purpose for introducing Clause (p) appears to be to exclude the application of Section 66(p) in respect of the transport vehicle while proceeding empty for the purpose of repair. The expression "on use" in Section 66 should be for the purpose for which the permit is granted namely to carry goods in the instant case.
IT is a well-accepted principle of interpretation that if two interpretations are possible, one interpretation which would benefit the person who is intended to be brought within the exclusion clause must be adopted. So interpreted, it is clear in our mind that the Insurance Company committed deficiency in not settling the claim. We therefore allow the appeal, set aside the order of the District Forum and direct the opposite party to settle the claim within a period of one month from today. Appeal allowed.