Ram Kishore vs Ram Saran & Ors.
2009 Latest Caselaw 2348 Del

24
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +    MAC.APP. 182/2009

                                   Date of Decision: 29th May, 2009

%

      RAM KISHORE                                ..... Appellant
                            Through : Mr. D.D. Singla, Adv.

                       versus

    RAM SARAN & ORS.                 ..... Respondents
                  Through : Mr. Nikhil Majithia, Adv.
                            for R-3.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?

3.      Whether the judgment should be
        reported in the Digest?

                           JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby Rs.1,15,300/- has been awarded to the

appellant against respondent No.2.

2. The accident dated 1st February, 2007 resulted in

grievous injuries to the appellant who was travelling in the

TSR which met with an accident with a Tata Tempo.

3. The appellant filed the claim petition before the learned

Tribunal against the driver, owner and Insurance Company of

the TSR.

4. The learned Tribunal passed the award of Rs.1,15,300/-

in respect of the injuries suffered by the appellant. The

award has been passed against respondent No.2 who is the

owner of the offending vehicle. The vehicle was validly

insured with respondent No.3 but respondent No.3 was

exonerated from the liability on the ground that there is

violation of the condition of the permit which required the

permit holder to drive the vehicle himself.

5. Admittedly, there is a valid permit in this case. It is

also not disputed that the driver of the TSR was having a

valid driving licence to drive the said vehicle. Since there is

a valid permit in respect of the offending vehicle, the

Insurance Company is primarily liable to pay the

compensation to the claimant.

6. It may be noted that the Insurance Company cannot

avoid the liability on any ground other than those mentioned

in Section 149 of the Motor Vehicles Act. The defence raised

by respondent No.3 does not fall within any of the permitted

defences under Section 149 of the Motor Vehicles Act.

7. The learned counsel for respondent No.3 submits that

Section 149(2)(a)(i)(c) provides that the Insurance Company

can avoid the liability in the event of the use of a vehicle for

a purpose not allowed by the permit where the vehicle is a

transport vehicle. There is no violation with respect to the

use of the offending vehicle as the offending vehicle is a TSR

and was being used to carry the passengers and, therefore, it

was being used for a permitted purpose.

8. The learned Tribunal correctly held in para 23 of the

award that the Insurance Company is liable towards the third

party and cannot avoid the liability. However, in the last

para of the impugned award, the liability has been casted on

the owner of the offending vehicle.

9. The appeal is accordingly allowed and the impugned

award is set aside to the extent respondent No.2 has been

held liable to pay the award amount to the claimant. The

primary liability to satisfy the impugned award is of

respondent No.3. The award passed by the learned Tribunal

is, therefore, modified and respondent No.3 instead of

respondent No.2 shall be initially liable to pay the award

amount to the claimants. Respondent No.3 is directed to

deposit the entire award amount along with interest with the

learned Tribunal within a period of 30 days. After satisfying

the award against the claimant, respondent No.3 is granted

recovery rights to recover the award amount from

respondent No.2.

10. Copy of this order be given 'Dasti' to learned counsel

for the parties under signatures of Court Master.

J.R. MIDHA, J

MAY 29, 2009 aj