Allahabad High Court
The Oriental Insurance Company ... vs Sushil Kumar Pandey And Others on 5 July, 2012
Bench: Rajes Kumar, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 30
Case :- FIRST APPEAL FROM ORDER No. - 2625 of 2012
Petitioner :- The Oriental Insurance Company Ltd.
Respondent :- Sushil Kumar Pandey And Others
Petitioner Counsel :- Arun Kumar Shukla
Hon'ble Rajes Kumar,J.
Hon'ble Anil Kumar Sharma,J.
This is an appeal filed by the Insurance Company. The appellant is the insurer of a Maruti Van bearing no. U.P. 70 M - 8525.
The only submission of the learned counsel for the appellant is that the offending vehicle did not possess the fitness certificate as required under Section 56 of the Motor Vehicle Act. He further submitted that the sitting capacity of the vehicle is of eight passengers, which is clear from the registration certificate and, therefore, in view of the circular dated 12th December, 2005 issued by the Transport Commissioner, Uttar Pradeh, the vehicle having capacity of more than six persons, it is necessary to have fitness certificate. Since the vehicle did not possess fitness certificate, therefore, there was a breach of the policy and the Insurance Company is not liable to pay the compensation.
We do not find any substance in the argument of learned counsel for the appellant.
Section 56 of the Motor Vehicle Act, 1988 (hereinafter referred as 'the Act') provides that subject to the provisions of Section 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government. "Transport vehicle" is defined by Section 2 (47) of the Act, which provides that the transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. "Private service vehicle" is defined by Section 2 (33) of the Act, which provides private service vehicle means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the pruposes of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes.
The case of the learned counsel for the appellant is that the offending vehicle is a private service vehicle and, therefore, it is the transport vehicle and hence the fitness certificate is required for the said vehicle under Section 56 of the Act. Private service vehicle is defined by Section 2 (33) of the Act (referred herein above). Only those motor vehicles, which carries persons for, or in connection with trade or business of the owner shall be considered as private service vehicle and not any other private service vehicle or public vehicle. Therefore, in order to cover the vehicle under the definition of private service vehicle it is to be established that the vehicle is being used in connection with his trade or business by the vehicle owner.
In the present case, it is not the case of the Insurance Company that the offending vehicle was being used for carrying of the passengers for the purposes of his trade or business by the owner of the vehicle, therefore, it cannot be private service vehicle. In so far as the Transport Commissioner's circular is concerned, it cannot be read in isolation and it is to be read along with provisions of the Act. If it is read along with provisions of the Act, it comes down to, that only those vehicle having capacity of more than six persons, is required to have a fitness certificate, which is being used for carrying the passengers for, or in connection with, his trade or business by the owner of vehicle. Moreover, it is the settled principle of law that any circular, which is contrary to the provisions of the Act is not binding and cannot override the provisions of the Act.
No other argument has been raised by the learned counsel for the appellant.
In view of the above, we do not find any merit in the appeal. The appeal fails and is dismissed.
Order Date :- 5.7.2012
Shekhar
