Vikas Lohia vs Beena Sharma & Ors.
2017 Latest Caselaw 7061 Del

$~R-674
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Decided on: 07th December, 2017
+      MAC APPEAL 1226/2012

       VIKAS LOHIA                                   ..... Appellant
                          Through:     None

                          versus

       BEENA SHARMA & ORS.                          ..... Respondents
                   Through:           Mr. J.P.N. Shahi, Adv. for R-4

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                      JUDGMENT (ORAL)

1. On the accident claim case (suit no.13/2011) instituted on 10.03.2011 by the first to third respondents (collectively, the claimants), the Motor Accident Claims Tribunal (Tribunal), by judgment dated 21.07.2012, held that the motor vehicular accident, resulting in the death of Surender Kumar Sharma @ S.K. Sharma, giving rise to cause of action for claim case had occurred due to negligent driving of a bus bearing registration no.DL-1PB-0123 by the fifth respondent (driver), he having been engaged for such purposes by the appellant (owner), both of them being held, jointly and severally, liable to pay compensation.

2. The bus was concededly insured against third party risk with the fourth respondent (insurer) for the period in question. The insurer while contesting the case had raised the plea of breach of terms and

conditions of the insurance policy since the bus was being plied on the road without any valid permit. This plea was resisted and evidence was led both by the insurer and the owner of the vehicle. The Tribunal upheld the plea of the insurance policy holding that the act of bringing the bus on road without a valid permit amounted to such breach and thereby granted recovery rights to it (the insurer) against the appellant. It is the grant of recovery rights which is challenged by the appeal at hand by the owner.

3. The appeal was put in the list of 'Regulars' as per order dated 03.03.2016 for it to come up on its own turn. It was taken up on application (CM 20417/2017) being filed, on 26.05.2017 in which context proceedings continued before the court till 31.05.2017. Thereafter, another application (CM 23226/2017) was filed seeking modification of an interim order. The said application was taken up on several dates lastly on 25.08.2017. The appellant, thereafter, moved another application (CM 35661/2017) which, however, was withdrawn and dismissed accordingly by order dated 27.09.2017. When the appeal is taken up, however, on its own turn, there is no appearance for the appellant.

4. The learned counsel for the insurer has been heard and, with his assistance, record perused.

5. The tribunal has considered the issue of breach of the terms and conditions of the insurance policy thus :

"11. The ld. Counsel for the insurance company has taken a plea that the R-3/Insurance company is not liable to pay the compensation as there was violation of the terms and conditions of the insurance policy by the

insured as the offending vehicle was being plied without any valid permit at the time of accident. In support of his claim the Ld counsel for the R-3/Insurance company has relied upon the statement of R3W1, Sh. Mohan Singh, Assistant, M/s. National Insurance Company Ltd. who has proved the copy of the Insurance policy, Ex. R3W1/2 and has deposed that the offending vehicle of the insured / R-2 was being plied without any valid permit on the date of accident i.e. on 10.01.2011. This witness has further deposed that notices U/o. 12 Rule 8 CPC, Ex. R3W1/3 was issued by their counsel to the R-2/insured for producing the valid permit of the offending vehicle. The postal receipt of the said notice is Ex. R3W1/4 and the AD card of the said notices is Ex. R3W1/5. Per contra, the ld counsel for the respondents no.1 and 2 has fairly conceded that there was no permit for the said bus on 10.01.2011 and has argued that there was no need of any permit as the said bus was coming from workshop where it had gone from repairs a day prior to the date of accident. The respondent no.2/owner of the offending vehicle, Shj. Vikas Lohia has got himself examined as R2W1 and has deposed that last Route Permit bearing no.SC/3000/GE/1234/93 of Bus No.DL-1PB-0123 was issued to him w.e.f. 06.12.2010 for plying on route no.729 and the aforementioned permit was valid upto 14.12.2010. The Ld counsel for R-3/Insurance company has argued that the policy, Ex. R3W1/2 covered use only under a permit and the said condition was categorically mentioned at point X on the insurance policy, Ex. R3W1/2. R2W1, Sh. Vikas Lohia and R1W1, Sh. Mohan Singh have claimed that bus in question had gone for repairs at Choudhary Dharambir Market, Badarpur Border, New Delhi for repairs of its mechanical defects and it was being brought back after repairs when the same had been falsely implicated by the police in a case of road vehicular accident. However, R2W1, Sh. Vikas Lohia has himself admitted during his cross-examination on 05.03.2012 that he has not filed any complaint before

any authority regarding false implication of his bus by the police officials in this accident. The driver, Sh. Mohan Singh, R1W1 has also admitted during his cross- examination on 05.07.2012 that he is facing trial in FIR no.08/11, PS Kalkaji and that he had also not filed any complaint regarding false implication of himself and the bus bearing no.DL-1PB-0123 before any authority. Admittedly, the bus bearing no.DL-1PB-0123 had been got released on superdari. The owner of the said bus, Sh. Vikas Lohia is a commerce graduate but does not chose to file any complaint regarding alleged false implication of his bus and accordingly his testimony is not credit worthy. The Ld counsel for the R-1 and R-2 has tried to place reliance on the statements of R2W2, Sh. Shakir Ali who has been produced by the R-1 and R-2 and who has deposed that he owns the motor repair workshop bearing shop no.10 situated at Choudhary Dharambir Market, Badarpur, New Delhi and on 01.01.2011 bus bearing no.DL-1PB-0123 was brought to his workshop by Sh. Mohan Singh for repairs of defects of brakes, engine mis- firing and propeller shaft noise and that on 10.01.2012, the said driver, Sh. Mohan Singh had paid the bill amount against repair and service charge and he had issued receipt, Ex. R2W2/1. However, during his cross- examination on 05.07.2012, R2W2, Sh. Shakir Ali had admitted that his workshop is not registered with any Govt. agency or municipal authority and that he had issued the bill, Ex. R2W2/1 for his labour charges and the bills for the parts would have been available with the owner of the bus who had purchased the same from M/s. Vijay Automobiles which is also situated in the same market. However, no such bills of purchase of repaired parts have been filed or proved on record by R2W1, Sh. Vikas LOhia during his deposition. Perusal of Ex. R2W2/1 shows that the same bears bill no.705 dated 10.01.2011. Strangely, there is no bill no.706 in the bill book, Ex. R2W2/P-X and the bill no.707 is dated 11.01.2011 while bill no.708 was issued on 07.01.2011

and when the witness R2W2, Sh. Shakir Ali was asked to explain the reason for the date of 07.01.2011 on bill no.708 while the earlier bill no.707 is dated 11.01.2011 and the answered that the folio in the bill book are sometime left blank and subsequently bills are prepared on those blank folios. The deposition of R2W2, Sh. Shakir Ali is not worthy of any credence as he himself admitted during his cross-examination on 05.07.2012 that the folios in the bill book were sometime left blank and subsequently bills were prepared by him on those blank folios. Besides, he admitted that except for the bill in question his signatures do not appear on other bills i.e. on bills bearing numbers 701 to 749. Strangely, the bill book, Ex. R2W2/P-X as well as bill in question i.e. bill no.705 does not have any details i.e. even the name and address of the workshop is not mentioned on the said documents. I find considerable force in the contention of the Ld. Counsel for the R-3/Insurance company that the testimony of the driver, owner and R2W2, Sh. Shakir Ali does not inspire any confidence and the same appears to be fabricated to avoid any liability by the owner. The complainant of FIR No.08/11, PS Kalkaji i.e. Shri Om Prakash Sharma who is an eye-witness to the accident ahs mentioned in his FIR that the accident was caused by bus no.DL-1PB-0123 plying on route no.764. The owner / respondent no.2, Sh. Vikas Lohia has categorically averred that the last Route Permit bearing no.SC/3000/GE/1234/93 of Bus No.DL-1PB-0123 was issued to him w.e.f 06.12.2010 for plying on route no.729 and the same was valid only upto 14.12.2010.

12. From the perusal of the testimony of R3W1, Sh. Mohan Singh, Assistant, M/s. National Insurance Company Ltd. & R2W1, Sh. Vikas Lohia, it is categorically clear that there were violation of the permit conditions by the R-2/insured as the offending vehicle was being driven without any valid permit at the time of accident. Necessity for permit is a statutory requirement provided under Section 66 of the MVA Act. Besides it

was one of conditions of the insurance policy that the policy covers use only under a permit within the meaning of MV Act. The Hon‟ble Supreme Court of India has held in case titled „National Insurance Company Ltd. Vs. Challa Bharathamma & Ors., 2004 ACJ 1336 that a person without a permit to ply a vehicle cannot be placed at a better pedestal vis-à-vis one who has a permit but has violated any condition thereof. It has been further held in para 12 of the said judgment that plying of a vehicle without a permit is an infraction and therefore, in terms of Section 149(2), defence is available to the insurance company.

13. In view of the law laid down by the Hon‟ble Supreme Court of India, I hereby order hat insurance company is entitled for recovery rights from the insured of the offending vehicle / respondent no.2 but only after disbursement of the award amount to the petitioners in terms of judgment of Hon‟ble Supreme Court in case titled „National Insurance Company Ltd. Vs. Swaran Singh, AIR 2004 SC 1531."

6. In the considered view of this court, the reasons set out by the tribunal for grant of recovery rights are appropriate. The owner had admitted that there was no valid permit held. There was no reason for the vehicle to be brought on road without such a valid permit having been obtained.

7. The appeal is, thus, dismissed.

8. In terms of interim orders passed on the file of this appeal, the appellant was directed to deposit a sum of Rs.10,00,000/- in two installments of Rs.5 Lakh each by order dated 25.08.2017. The said deposited amount shall now be released to the insurance company towards satisfaction of its recovery rights. For the balance, the

insurance company is at liberty to take out appropriate execution proceedings before the tribunal.

R.K.GAUBA, J.

DECEMBER 07, 2017/yg