Nishat and Malwa Transport Co. Pvt. Ltd and Another vs Pawan Kumar and Another

Deepak Gupta, J.—This appeal by the owner is directed against the award of the learned Motor Accident Claims Tribunal, Fast Track Court, Una, District Una, HP dated 11.12.2008 whereby the Appellant-owner was directed to pay compensation of Rs. 2,58,400/- along with interest @ 6% per annum from the date of filing of the petition, i.e. 26.3.2002 till payment of the entire amount.

Briefly stated, the facts of the case are that the claimant Pawan Kumar was driving his scooter on 25.9.2001. He was going from Barsar to Nangal. Near Nalwari Chowk, the offending bus owned by the present Appellant came from the opposite side and hit the scooter, as a result of which, the claimant-Pawan Kumar suffered injuries. The claimant filed a Claim Petition and the learned Tribunal held that the accident occurred due to the rash and negligent driving of the bus driver. The learned Tribunal, therefore, held the driver and owner of the bus liable to pay compensation. The insurance company was exonerated of its liability on two grounds: firstly; that the driver did not hold a valid driving licence at the time of accident and secondly; that the owner did not have a valid route permit to ply the vehicle within the State of Himachal Pradesh.

The first question is with regard to the finding on the issue of negligence. The accident in question is not disputed. The claimant appeared as his own witness and stated that the accident had occurred due to the rash and negligent driving of the bus driver. However, the bus driver did not care to step into the witness box and, therefore, the statement of the claimant and his witness PW-5 Shri Shamsher Singh is sufficient to hold that the accident occurred due to rash and negligent driving of the bus driver.

As far as quantum is concerned, it stands proved on record that the claimant suffered fracture of both his bones on the right leg and his right leg was also shortened and there is permanent disability of 40%. Therefore, the amount of compensation awarded by the learned Tribunal is absolutely reasonable calling for No. interference in appeal.

The learned Tribunal, in my opinion, erred in holding that because the driver did not hold a valid driving licence, the insurance company should be exonerated of its liability. The owner had stepped into the witness box and stated that when he engaged the driver he had seen the driving licence. The learned Tribunal has noted in its award that No. driving licence has been produced. However, from the record I find that the Criminal Ahlmad of the Court in which criminal proceedings were being prosecuted against the driver had produced the copy of the driving licence Ext. RW1/A which prima-facie shows that the driver held some licence. Even if, this licence is not valid, the owner had No. reason to suspect that this driving licence was fake. When a driver seeks employment he will just show the driving licence and the owner has No. means of knowing, whether the driving licence is fake or not. The Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, has clearly held that there must be some wilful breach by the owner and in this case such breach is missing and, therefore on this aspect, the owner could not be held liable.

However, it stands proved on record that there was No. valid permit issued in favour of the Appellant-owner permitting him to ply the vehicle. The owner when he stepped into the witness box stated that he had a contract carriage permit but did not produce the same. Even as per his statement the permit, if any, was only for the State of Punjab and not for Himachal. Since, there was No. permit, there is obviously a violation of the terms of the policy and the provisions of the Motor Vehicles Act. The Apex Court in National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, held as follows:

xxx 12. High Court was of the vhew that since there was No. permit, the question of violation of any conditionthereof does not arise. The view is clearly fallacious. A person without permit to ply a vehiclecannot be placed at a better pedestal vis-a-vis onewho has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is aninfraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had No. relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable. x x x x

Following the judgment of the Apex Court, learned Chief Justice of this Court in J.B. Pipes Vs. Madan Lal and Others, held that if there is No. permit to ply a vehicle, then the insurance company cannot be held liable. Therefore, the learned Tribunal on this count was justified in exonerating the insurance company and holding the owner liable to pay the compensation. Therefore, the appeal of the Appellant is dismissed, though on different reasons. All CMP(s) are disposed of. No. costs.