Milind Kumar Mishra vs Krishna Kumar Shukla And 2 Others
2021 Latest Caselaw 4365 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 1
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2848 of 2014
 

 
Appellant :- Milind Kumar Mishra
 
Respondent :- Krishna Kumar Shukla And 2 Others
 
Counsel for Appellant :- Lalji Chaudhary
 
Counsel for Respondent :- Ram Singh,Vijay Prakash Mishra
 

 
Hon'ble Vivek Agarwal,J.

1. Heard Sri Lalji Chaudhary, learned counsel for appellant, Sri Mohd. Asim Zulfiquar, learned counsel for the respondents and Sri Vijay Prakash Mishra, learned counsel for insurance company.

2. This appeal has been filed by the owner of the offending vehicle being aggrieved of the award dated 01.08.2014 passed by learned Motor Accident Claims tribunal/Additional District Judge, Court No. 2, Fatehpur in M.A.C.P. No. 378 of 2012, on the ground that vehicle in question was going for repairs and therefore, learned tribunal erred in exonerating the insurance company of payment of amount of compensation, on the ground of violation of permit conditions.

3. Sri Chaudhary submits that since vehicle was going for repairs and that plea has been specifically taken in the written statement and therefore, under the exceptions provided under Section 66(3)(p) of the Motor Vehicles Act, 1988, requirements of permit at the relevant time shall stand relaxed and therefore, insurance company should not have been exonerated.

4. Sri Mishra, on the other hand, submits that no independent evidence was led in regard to absence of permit and since vehicle was taken for repairs at the relevant point of time, therefore, decision of Coordinate Bench in case of Chhotey Miyan vs. Smt. Dharma Devi and Another, decided on 01.11.2017 (F.A.F.O. No. 3212 of 2014) will not be available to the facts and circumstances of the present case and therefore, exoneration of the insurance company may not be disturbed. Sri Mishra places reliance on the judgment of Hon'ble Supreme Court in case of Amrit Paul Singh and another Vs. Tata AIG General Insurance Company Ltd. and others; (2018) 7 SCC 558, in support of his contention.

5. Sri Zulfiquar, in his turn, submits that claimants have filed cross-objections seeking enhancement on the ground that for an accident which took place on 03.09.2012, income of the deceased has been computed at Rs. 3,000/- (three thousand rupees) per month. He submits that multiplier of 11 has been applied as per the age of the claimants whereas it will be 18 as per the age of the deceased. Tribunal has awarded only a sum of Rs. 20,000/- (twenty thousand rupees) under the head of non-pecuniary compensation, which needs to be enhanced to Rs. 30,000/- (thirty thousand rupees). He fairly submits that tribunal has awarded future prospects @ 50%, which needs to be reduced to 40%.

6. After hearing learned counsel for the parties and going through available record, it is evident that decision in case of Amrit Paul Singh and another (supra), is on the issue of permit and it provides that absence of a permit is one of the valid defense available to the insurance company to repudiate the claim and the exceptions that have been carved out under Section 66 of the Act, needless to emphasize are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in public place without permit, is a fundamental statutory infraction and therefore, once insurer had taken the plea that the vehicle in question had no permit, it does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing was brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus could not be cast on the insurer.

7. Fact of the matter is that it has been discussed by learned tribunal on internal page-19 of the award that owner of the vehicle had produced a permit along with list of documents 43-Ga, 248-Ga/1, enclosing a copy of the permit, which was valid from 12.09.2012 to 11.09.2017. Accident took place on 03.09.2012, therefore, on the date of the accident, the owner of the vehicle was not having any valid permit to ply a vehicle. In absence of any valid permit, a plea of diversion from a route to a place of repair will not of any assistance to the appellant, especially, after making a plea of taking the vehicle for repairs, no evidence was adduced in favour of this contention whereas ratio of the law laid down in case of Amrit Paul Singh and another (supra), is clear that use of a vehicle in a public place without a permit is a fundamental statutory infraction. It is also laid down that exceptions as have been carved out under Section 66 of the Act, are to be pleaded and proved. There is no proof of this plea that vehicle was taken for repairs so to bring it within the exception as provided under Section 66(3)(p) of the Act, therefore, the judgment of Coordinate Bench in case of Chhotey Miyan (supra), will not be applicable to the facts and circumstance of the present case in the light of the ratio of law laid down in case of Amrit Paul Singh and another (supra), which is binding on this Court.

8. As far as enhancement is concerned, tribunal has construed income of the deceased at Rs. 3,000/- (three thousand rupees) per month, whereas on the date of the accident i.e., 03.09.2012 even minimum wages for an unskilled labourer were to the tune of Rs. 4,500/- (four thousand five hundred rupees) per month. When computation is made after taking minimum wages into consideration, then it will be as follows namely, @ Rs. 4,500/- per month or Rs. 54,000/- (fifty four thousand rupees) per annum. Deceased was a 'bachelor', 50% is deducted from the income of the deceased as living expenses. When 40% is added towards future prospects, then net dependency will come out to Rs. 37,800/- (thirty seven thousand eight hundred rupees). When multiplier of 18 is applied, then total pecuniary compensation will come out to Rs. 6,80,400/- (six lakhs eighty thousand four hundred rupees). Over and above which, claimants are entitled to a sum of Rs. 30,000/- (thirty thousand rupees) under the head of non-pecuniary compensation, taking total compensation to Rs. 7,10,400/- (seven lakhs ten thousand four hundred rupees) against a sum of Rs. 3,17,000/- (three lakhs seventeen thousand rupees), awarded by learned claims tribunal. Thus, there will be enhancement to the tune of Rs. 3,93,400/- (three lakhs ninety three thousand four hundred rupees) and to this extent, cross-objection/cross-appeal is allowed. It is directed that this enhanced amount will also carry interest @ 6% p.a., as awarded by learned tribunal from the date of filing of the claim petition.

9. Taking into account the totality of the facts and circumstances of the case and in the light of the law laid down by Supreme Court in case of Pappuu and Others vs. Vinod Kumar Lamba and Another; (2018) 3 SCC 208, it is directed that since there is a fundamental breach of a policy in driving the vehicle in public place without there being a valid permit, insurance company will satisfy the award and will be free to recover the same from the owner/appellant of the offending vehicle.

10. At this stage, learned counsel for the appellant submits that Rs. 25,000/- (twenty five thousand rupees) deposited by the insurance company, in compliance of the provisions contained in Section 173 of the Motor Vehicles Act, be remitted to the claims tribunal to be adjusted from the claim amount. This prayer is allowed. Appeal is disposed off in above terms.

Order Date :- 23.3.2021

Vikram/-