Allahabad High Court
M/S Pashupati Plasticizer And ... vs Smt. Sushma Tiwari & Others on 14 December, 2018
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 26
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 2059 of 2011
Appellant :- M/S Pashupati Plasticizer And Chemical
Respondent :- Smt. Sushma Tiwari & Others
Counsel for Appellant :- Neeraj Kumar Srivastava
Counsel for Respondent :- Ajay Singh,V.K.Baranwal
Hon'ble Ram Krishna Gautam,J.
Learned counsel for the appellant as well as Sri V.K. Baranwal and Sri Ajay Singh, learned counsel for the opposite party Nos.5 & 6, are present.
Perused the report of office and the receipt of registered notice issued to opposite party No. 1 to 4. The same were issued through registered post and has not yet been returned back. Hence, the service of notice is presumed to be sufficient for opposite party No. 1 to 4. Moreso, they are not the contesting parties because they are the claimant and the real contest is in between the owner of vehicle i.e. present appellants and the insurance company of the offending vehicle who has been granted the right to recover the compensation paid by them and they are present before the Court.
Heard learned counsel for the parties.
This appeal under Section 173 of Motor Vehicle Act, 1988 has been filed by M/s Pashupati Plasticizer and Chemical, owner of the truck Registration No. MP30H0182, against Smt. Sushma Tiwari and others, against the judgment and award dated 31.03.2011, passed by Motor Accident Claim Tribunal/Additional District Judge, Court No. 1/M.A.C.T., Jhansi, in Motor Accident Claim Petition No. 526 of 2007 (Smt. Sushma Tiwari and others Vs. Mohd. Ilyas Khan and others), with this contention that the Tribunal failed to appreciate the facts and law placed before it.
At the time of accident, the driver of the truck in question was with valid driving licence, hence, there was no breach of terms of policy, as has been held by the Tribunal. The truck was validly and effectively insured with respondent No. 5 i.e. Oriental Insurance Company, who was liable to make the payment of compensation awarded by the Tribunal. But the right of recovery has been wrongly given to respondent No. 5.
The appellant had applied for permit to ply the vehicle in State of U.P. on 8.1.2007. The requisite fee for grant of permit was deposited prior to accident as such the permit was not given to appellant and it was not fault of appellant, but Tribunal failed to consider this. Whereas, the insurer was obliged to make the payment of compensation because the truck was fully insured by it. Hence, this appeal.
Learned counsel for the appellant argued that the vehicle in question was with all papers, validly and effectively insured by opposite party No. 5, i.e. Oriental Insurance Company and it was being driven by a driver, having valid and effective driving licence with him.
The only lapse was of permit, for which the application was moved and requisite fee was deposited for permit for plying the truck in the State of U.P. and it was not the fault on the part of truck owner. Hence, right of recovery was wrongly given.
Per contra, learned counsel for the Insurance Company submitted that plying a vehicle without a permit in a public way, was the defiance of the term of policy of insurance entered in between insurer and insured and because of it, the Tribunal awarded the right of recovery to Insurance Company.
The only argument regarding the legal flaw alleged in the judgment is regarding the permit and this fact is being admitted before this appellate Court, and was on the record before the Tribunal that the truck in question was not with valid permit on the date of accident. The law repeatedly propounded by Hon'ble Apex Court and Division Bench of this Court is of this fact that plying a vehicle in a public place without a permit is the clear defiance of the terms of policy and for this defiance insurance company cannot be fastened with the liability.
Hon'ble Apex Court in the judgment of 17th May, 2018 in Amrit Paul Singh & Another Vs. Tata AIG General Insurance Co. Ltd. & others (2018) Lawsuit (SC) 518 has propounded that "use of a vehicle in a public place without a permit is a fundamental statutory infraction".
Hence, the admitted position was that on the date, place of occurrence and time of occurrence, the truck in question was being plied without a valid permit and it was a defiance of the statutory condition precedent for the liability of insurance company. Hence, Tribunal by way of appropriate appreciation of the facts and evidences adduced on record has passed the impugned judgment and thereby given the right to insurance company for realization of compensation paid by it, from the owner of the vehicle in question. There is no illegality, irregularity or perversity in the impugned judgment, hence, this appeal merits its dismissal.
The appeal is, accordingly, dismissed.
Order Date :- 14.12.2018
Kamarjahan
