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National Insurance Company Limited, Raipur v/s Khorin Bai Sori & Others


Company & Directors' Information:- NATIONAL INSURANCE COMPANY LIMITED [Active] CIN = U10200WB1906GOI001713

Company & Directors' Information:- NATIONAL CO LTD [Strike Off] CIN = U51909WB1917PLC002781

Company & Directors' Information:- NATIONAL CORPORATION PVT LTD [Not available for efiling] CIN = U51909PB1942PTC000480

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

Company & Directors' Information:- INSURANCE OF INDIA LTD [Strike Off] CIN = U67200WB1936PLC008634

Company & Directors' Information:- NATIONAL CORPORATION PRIVATE LIMITED [Not available for efiling] CIN = U99999MH1950PLC009913

    MAC No. 925 of 2014

    Decided On, 03 September 2020

    At, High Court of Chhattisgarh

    By, THE HONOURABLE CHIEF JUSTICE MR. P.R. RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE PARTH PRATEEM SAHU

    For the Appellant: Goutam Khetrapal, Advocate. For the Respondents: None.



Judgment Text

P.R. Ramachandra Menon, CJ.1. Award passed by the Tribunal mulcting the liability upon the shoulders of the Appellant/Insurance Company, even without granting the right of recovery after satisfying the compensation to the Claimants, despite the proven violation of the statutory/policy condition, insofar as the offending vehicle was being operated without a valid permit, is put to challenge in this appeal.2. At the very outset, it is to be noted that the Respondents No. 2 and 3/Driver and Owner of the offending vehicle have not turned up, in spite of completion of service of notice. They did not appear even before the Tribunal to contest the matter and were set ex parte.3. The accident took place on 01.04.2012. The deceased, who was engaged as a labourer of the Insured in the vehicle bearing Registration No. K.A.-02 AA/8199, was stated as sleeping / taking rest at night beneath the vehicle. All of a sudden, the driver of the offending vehicle, without any knowledge of this fact, started the vehicle and moved on, whereby the deceased came to be crushed under the vehicle leading to his death. This was sought to be compensated by filing the claim petition by the 1st Respondent-Mother. As mentioned already, the claim was not contested by the Driver and Owner. The Appellant-Insurance Company contended that there was clear violation of the statutory/ policy conditions; insofar as the Driver of the offending vehicle was not having a valid and effective driving license at the relevant time and further that the vehicle was being operated without a valid permit in the State of Tamilnadu, where occurred the accident.4. The Tribunal held in paragraph 9 that, the plea with regard to the absence of valid driving license was not correct as the driver was having proper and valid driving license as revealed from the materials brought on record. With regard to the absence of the valid permit, the Tribunal noted that the permit referred to by the Appellant-Insurance Company was a National Permit; that the vehicle concerned was registered in the State of Karnataka; that for plying the vehicle in the State National Permit was not necessary and that there was no material to hold that, there was no valid permit to ply the vehicle at the place of occurrence of the accident i.e. in the State of Tamilnadu. It was accordingly that the compensation was fixed by the Tribunal to an extent of Rs. 3,34,000/- with interest, as specified, and it was directed to be satisfied by the Appellant-Insurance Company; correctness of which is under challenge in this appeal.5. Shri Goutam Khetrapal, the learned counsel appearing for the Appellant- Insurance Company submits that, necessity to have a valid permit to use the transport vehicle in a public place, whether or not such vehicle was actually carrying any passenger or goods, is mentioned in Section 66 of the Motor Vehicle Act, 1988 (for short 'the Act, 1988') and the conditions of the permit would be as specified in terms of the relevant Rules.6. In the instance case, as pleaded by the Appellant-Insurance Company and as noted by the Tribunal in paragraph 8 of the Award, the permit issued for the vehicle was a 'National Permit'; for the period from 05.04.2012 to 04.04.2017, whereas accident was occurred on 01.04.2012, i.e. much before obtaining the permit as above. This being the position, the vehicle was being operated in total disregard to the rule of law and violation of the statutory/policy conditions was clearly established by documentary evidence and also by the oral evidence given by the Officer of the Insurance Company, who deposed before the Tribunal as a witness in support of the case.7. The necessity to have a valid permit to use a transport vehicle in public place has been asserted by the Apex Court stating that the absence will definitely amount to the defence in terms of Section 149 (2) (c) of the Act, 1988 as held in National Insurance Co. Ltd. v. Challa Bharathamma and Others reported in (2004) 8 SCC 517.(The name of the said case was subsequently corrected by the Apex Court as “National Insurance Co. Ltd vs. Challa Upendra Rao and Others”=(2004) 8 SCC 517) Whether the absence of permit is a 'fundamental breach' or a 'technical breach' was considered elaborately by a Five Member Bench of the High Court of Kerala in Pareed Pillai vs. Oriental Insurance Co. Ltd reported in 2018 SCC Online Ker 3542 (authored by P.R.Ramachandra Menon,CJ.), holding that it is a fundamental breach and not a technical breach. The legal position has been reiterated by the Apex Court as per judgment in Amrit Paul Singh and Another v. Tata AIG General Insurance Co. Ltd. & Others reported in 2018 (7) SCC 558. Once such breach is established, the Apex Court has made it clear, that the compensation paid by the Insurer to the Claimants can be got recovered from the Owner and Driver of the vehicle for operating the transport vehicle without valid permit at the relevant time.8. Now, it is to be considered whether the legal position has been correctly applied by the Tribunal while dealing with the case in hand. Paragraph 10 and 11 of the Award are relevant, which are extracted below:“LANGUAGE”9. The reasoning given by the Tribunal in the above paragraphs clearly runs contrary to the dictum in the binding precedents referred to above. As it stands so, the Award passed by the Tribunal cannot but be branded as 'wrong and perverse' in all respects. The specific pleadings raised by the Appellant-Insurance Company, as to absence of valid permit was never rebutted by the Driver and Owner and they did not contest the matter but chose to remain ex parte. The materials brought on record, oral and documentary, as taken note of by the Tribunal in paragraphs 8 and 10, clearly reveal that, the only permit i.e. the National Permit was valid only from 05.04.2012 to 04.04.2017, whereas the accident was occurred earlier on 01.04.2012.10. The Driver and Owner did not have a case that the vehicle registered in the Karnataka was having any local permit to have operated in the State of Tamilnadu (where the accident occurred) on the date of the accident and as such, no presumption could have been made by the Tribunal merely on surmises or conjunctures. The Award passed by the Tribunal has extended premium to the wrongdoer i.e. Driver and Owner, which is not the intention of the legislation. No law can be interpreted in favour of a wrongdoer; more so, when the Driver and Owner di

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d not contest the matter either before the Tribunal or before this Court, despite the completion of service of notice.11. In the above circumstance, we hold that the violation of the permit has been pleaded and proved by the Appellant. In the said circumstances, they are entitled to have 'right of recovery' after satisfying the claim towards the 3rd party / Claimants. It is ordered accordingly. Once the claim is satisfied with interest, as ordered by the Tribunal, it is open for the Appellant to proceed with further steps for recovery of the same from the Respondents No.2 and 3/Driver and Owner of the vehicle by way of appropriate proceedings in accordance with law.The appeal stands allowed to the said extent.
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