Jharkhand High Court
The Branch Manager vs Rojina Khatun on 30 September, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 161 of 2023
The Branch Manager, Cholamandalam MS General Insurance
Company Ltd., address Flat No. 301, 3rd Floor, Tiwary Circular Road,
Ajit Enclave, P.O. & P.S. Lalpur, Dist. Ranchi (Jharkhand) 834001
represented through its Deputy Manager-Prafull Choudhary s/o P.C.
Choudhary, aged about 36 years, resident of C/o M/s Cholamandalam
MS General Insurance Co. Ltd., Shri Krishna Mathura Complex, IInd
Floor, Opp. Allahabad Bank, Lalpur-834001, Circular Road, P.O &
P.S. Lalpur, Dist. Ranchi.
... ... Opposite party No. 2/Appellant
Versus
1. Rojina Khatun, wife of late Afzar Ahmad,
2. Sahil Ahmad son of late Afzar Ahmad (minor),
3. Afik Ahmad son of late Afzar Ahmad (minor),
4. Aklima Bibi wife of Tajmul Haque,
5. Tajmul Haque son of late Anisur Rahman,
(Nos. 2 and 3 are minors and are represented through their mother i.e
respondent no.1).
All are resident of Village Agloi, P.S. Barharwa, P.O. & District.
Sahibganj (Jharkhand) ... ... Claimants/Respondents
6. Anarul Sk. son of late Ajajul Sk. r/o village Lakhinarayanpur, PO
& PS. Pakur Muffasil, District. Pakur
... ... opposite party No. 1/Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellant : Mr. Ashutosh Anand, Advocate
For the Claimant : Mr. Faruque Ansari, Advocate
For the Resp. No. 6 : Mr. Sandeep Verma, Advocate
: Mr. Sumit Kumar, Advocate
---
16/30.09.2024 Learned counsel for the parties are present.
2. This miscellaneous application has been filed being dissatisfied
with the Award dated 21.02.2023 passed by the learned Principal
District Judge cum MACT, Pakur in Motor Accident Claim Case No.
35 of 2018.
3. The appellant herein was the opposite party No. 2 and the
respondent No. 6 herein was the opposite party No. 1 before the
learned Tribunal.
Arguments of the appellant Insurance Company.
4. The learned counsel for the appellant has assailed the impugned
judgment by submitting that the deceased who was driving the motor
cycle was not having a driving license and therefore he was
completely prohibited from driving the vehicle on public road by
virtue of Section 3 of the Motor Vehicles Act, 1988. He has further
submitted that the so-called eye-witness had not supported the version
of the claimant and therefore there is no eye-witness to the occurrence.
He has further submitted that it is a case of two colliding vehicle i.e.
motorcycle and tempo and contributory negligence of the owner of the
vehicle should also be taken into consideration and the compensation
is required to be apportioned. He has also submitted that the offending
vehicle was tempo and the same was being driven without a valid
permit and this aspect of the matter has not been considered by the
court concerned.
5. No argument has been advanced by the learned counsel for the
appellant, so far as the quantum is concerned.
Arguments of the claimants.
6. Learned counsel appearing on behalf of the claimants has
submitted that there is specific finding recorded in paragraph no. 8 of
the impugned award that there was no contributory negligence on the
part of the driver of the motor cycle and therefore it is not relevant
whether the driver of the motor cycle had a driving license or not.
Arguments of the owner of the offending vehicle -tempo
7. So far as owner of the vehicle is concerned, he has referred to
Rule 66(1) of the Motor Vehicles Act 1988 and Rule 70 of Jharkhand
Motor Vehicle Rules to submit that the offending vehicle which was
insured was not required to have a permit in the light of Exhibit-4
which proves that it was a three-wheeler.
Rejoinder arguments of the appellant.
8. The learned counsel for the appellant in response has submitted
that as per the registration certificate which was Exhibit-A/1, the
sitting capacity was four but he is not aware as to whether this would
include the driver or not. Section 66(1) mandates requirement of
permit for all transport vehicles and therefore Rule 70 cannot be used
to curtail the applicability of the section and Rule 70 does not say that
permit is not required for vehicle having carrying capacity of less than
nine passengers. The learned counsel for the appellant has relied upon
a judgment passed by the Hon'ble Supreme Court reported in (2004) 8
SCC 517 and submits that the said judgment was dealing with auto
rickshaw carrying three persons.
Findings of this court.
9. The case of the claimants averred in the claim petition in brief
is that on 31.01.2018 at about 09:30 am, the deceased Afjar Ahmad
was going from Pakur to Kotalpokhar by his motorcycle, and he was
about to reach at village Ranipur and in the meantime the Tempo
bearing registration No. JH18F/1375 coming in rash and negligent
manner dashed the motorcycle of the deceased causing serious injury
and he died on the place of occurrence. It is further alleged that having
received the information of occurrence, the FIR was lodged on the
fardbeyan of Mazamil Haque, the uncle of deceased as Pakur Muffasil
P.S. Case No. 17 of 2018 dated 31.01.2018 was registered against the
driver of the offending vehicle (tempo) for offence under Sections
279/304A/427 of the Indian Penal Code.
10. After issuance of notice, the appellant (insurance company) and
respondent No. 6 (owner of the offending vehicle -tempo) appeared on
31.08.2018 and 07.02.2019 respectively. The owner of the offending
vehicle -tempo, filed his written statement and stated that the case is
not maintainable, and he admitted that the Pakur Muffasil P.S. Case
No. 17 of 2018 was registered against the driver of the tempo. It was
also stated that the tempo was fully insured by the Insurance Company
[policy valid from 09.09.2017 to 08.09.2018], hence the insurance
company was liable for all the liabilities of claim. It was also asserted
that the driver of the tempo was holding valid and effective driving
license.
11. The Insurance Company also filed written statement, interalia,
stating that the claimants are not entitled to get claim under Sections
140 and 166 of the Motor Vehicles Act. It was asserted that the driver
of the offending tempo did not have a valid driving license at the time
of occurrence, and the deceased was driving the motorcycle without
driving license and insurance company was not liable. It was further
asserted that the owner of motor cycle deceased was not made party so
the case was liable to dismiss on the ground of non-joinder and
misjoinder of necessary parties.
12. On the basis of pleading of both the parties, the learned court
has framed the following issues for adjudication: -
1. Whether the claim petition as framed, is
maintainable?
2. Whether the claimants have valid cause of action?
3. Whether the driver had a valid and effective driving
license at the time accident?
4. Whether the deceased Afjar Ahmad died due to rash
and negligent driving of the vehicle bearing
registration no.-JH18F- 1375 (Tempo)?
5. Whether the vehicle bearing registration no.-JH18F-
1375 at the time of alleged accident was insured with
O.P. no.-2?
6. Whether the owner or insurer of the vehicle is liable
to pay compensation amount?
7. Whether the claimants are entitled to get
compensation as claimed?
13. On behalf of the claimants, following witnesses have been
examined: -
No. of Witness Name of Witness Remarks
1 Rojina Khatun Wife of the deceased
2 Md. Salim Independent witness
14. On behalf of the claimants, following documents have been
produced which were marked as exhibits: -
Ext. Name of documents Remarks
No.
1 Certified copy of FIR Related to the accident of deceased
2 Xerox-copy of postmortem report Related to the deceased Afjar
Ahmad
3 Xerox-copy of R/C book of the Issued in the name of Anarul Sk. i.e.
vehicle no. JH18F-1375 (tempo) the O.P. no. 1
4 Xerox-copy of tax token Issued in the name of Anarul Sk. in
respect of vehicle no. JH18F-1375
5 Xerox-copy of insurance paper of Insurance in the name of Anarul Sk.
vehicle no. JH18F-1375(tempo) valid from 09.09.2017 00:01 hours
to midnight on 08.09.2018
6 Certified copy of cognizance order Related to the accident of deceased
dated 22.05.2018 in G.R. no. 77/18 Afjar Ahmad
7 Certified copy of charge-sheet Related to the driver of offending
vehicle namely, Mehrali Sk.
15. On the other hand, no witness was produced on behalf of the
owner of the offending vehicle -tempo but he produced the following
documents, which were marked as exhibits: -
Ext. Name of documents Remarks
No.
A1 Attested copy of the owner Issued in the name of Anarul Sk. in
book of alleged Tempo respect of vehicle no. JH18F-1375
B1 Attested copy of insurance Insurance in the name of Anarul Sk.
paper of alleged Tempo valid from 09.09.2017 00:01 hours to
midnight on 08.09.2018
C1 Attested copy of driving license Issued in the name of Mehrali Sk.
of driver of the alleged Tempo
D1 Attested copy of tax token Issued in the name of Anarul Sk. in
alleged Tempo respect of vehicle no. JH18F-1375
16. Further, on behalf of the appellant insurance company, one
witness, namely, Prafull Chaudhary was also examined and following
documents were produced and exhibited: -
Ext. Name of Documents Remarks
No.
A Xerox copy of Investigator letter Addressed to Anarul Sk. i.e. O.P.
dated 15/12/2022 u/s 134(C) of M.V. no. 1
Act
B Original receipt no. RJ280862047IN Addressed to Anarul Sk. i.e. O.P.
no. 1
C Track report
D Xerox copy of letter of Investigator Addressed to the Branch Manager,
dated 30/09/2022 Cholamandalam MS General
Insurance Company Ltd. Ranchi
E Attested copy of insurance paper of Insurance in the name of Anarul
Tempo Sk. valid from 09.09.2017 00:01
hours to midnight on 08.09.2018
F Xerox copy of Investigator letter Addressed to Anarul Sk. i.e. O.P.
dated 02.10.2018 no. 1
17. The learned Tribunal recorded that it was an admitted fact that
the tempo was having insurance coverage at the time of accident;
tempo was registered in the name of the owner (respondent no.6) who
was also having a valid licence which was also renewed from
27.07.2015 to 26.07.2018 and the tempo was a three-wheeler
passenger vehicle. Further, as per charge-sheet filed by the police also
the accident had taken place due to rash and negligent driving of the
owner cum driver of the tempo. The learned Tribunal while deciding
issue no.4 scrutinized the materials on record and held that the
accident had taken place due to rash and negligent driving of the
driver of the offending vehicle(tempo) and there was no contributory
negligence of the driver of the motor cycle who died due to the
accident.
18. Finding of the learned court with regard to issue No. 4 is quoted
as under: -
"8. From perusal of the documentary evidence of the claimants, I
find that Ext.-1 is the certified copy of Pakur Muffasil P.S. case no.-
17/18 dated 31.01.2018, corresponding to G.R. case no.-77/18,
Ext.-7 is the certified copy of charge-sheet and Ext.-6 is the
certified copy of order sheet of cognizance order dated 22.05.2018.
It is proved that the FIR was lodged for causing the alleged
accident against the driver of Temp no.-JH18F- 1375, 1 further
find that after completion of investigation the charge-sheet has also
been filed against the driver of the offending vehicle, namely,
Mehrali Sk. and no contributory negligence of the deceased, and
Ext.-6 proves that cognizance taken against the driver of offending
vehicle, namely, Mehrali Sk, therefore, considering the oral
evidence discussed above and documentary evidence marked as
Ext.-1, Ext. -6 and Ext.-7, 1 Find and hold that it has been proved
that the death of deceased, namely, Afjar Ahmad was resulted to
the alleged vehicular accident caused due to rash and negligent
driving by the driver of Tempo bearing registration no JH18F-
1375 and no contributory negligence of the deceased has been
proved. Accordingly, this issue no.-4 is decided in favour of
claimants and against the Opposite parties."
19. This court has also gone through the materials considered by
the tribunal to come to the aforesaid finding and finds no reason to
take a different view.
20. On the basis of the arguments advanced by the learned counsel
for the parties, two points arise for consideration by this court: -
(a) Whether the claim was rightly allowed even when
the driving license of the deceased driver of the
motor cycle was not produced/exhibited?
(b) Whether the insurance company could be made
liable when the owner of the offending vehicle -
tempo did not produce the route permit?
Point no.(a)
21. So far as point no.(a) is concerned, this court is of the
considered view that the learned Tribunal has discussed all the
materials on record to come to a finding that there was no contributory
negligence of the deceased driver of the motor cycle. This court has
gone through the evidence of the P.W-2 and finds that the said witness
is an eye witness to the occurrence and has stated that the driver of the
offending vehicle -tempo was driving the vehicle in rash and negligent
manner and went to his extreme right and hit the driver of the motor
cycle who died on the spot. Moreover, in the corresponding criminal
case the chargesheet was submitted against the driver of the offending
vehicle Tempo. The materials on record reveal that the accident had
occurred on account of rash and negligent driving of the driver of the
tempo and there was no contributory negligence of the deceased-
driver of the motor cycle. This court is of the considered view that in
absence of any contributory negligence of the deceased -driver of the
motor cycle, the appellant cannot deny the insurance claim to the
deceased on account of absence of his driving license. The appellant is
the insurer of the offending vehicle, tempo and would be liable to pay
on account of death of motor cycle rider caused solely due to rash and
negligent driving of the insured vehicle if other conditions of the
insurance are satisfied otherwise the owner of the offending vehicle
would be liable.
22. The point no (a) is accordingly decided against the appellant
and in favour of the claimants.
Point no.(b)
23. The records from the learned Tribunal reveals that vide order
dated 17.09.2019 the Insurance Company was debarred from filing
written statement. Thereafter issues were framed on 10.12.2021 and
the evidence of the claimants was closed on 04.08.2022.
Thereafter on 04.11.2022 a petition was filed by the insurance
company to recall the order dated 17.09.2019 and for taking their
written statement on record which was allowed vide order dated
16.11.2022, much after the closure of the evidence of the claimants.
Consequently, the written statement was taken on record in which
inter alia a specific plea was taken by the insurance company that the
owner of tempo had not filed any route permit which means that route
permit was not available and it was a violation of Motor Vehicles Act.
On 22.12.2022 the insurance company filed a petition under
Section 169(2) of Motor Vehicles Act seeking a direction from the
Court to direct the owner of the offending vehicle -tempo to produce
the documents including permit and on the very same day, the sole
witness of the insurance company was examined but the petition under
Section 169(2) was not pressed and was simply directed to be kept
with the record.
Subsequently on 07.02.2023, the owner of the offending vehicle
(Auto) filed a petition for marking a few documents as exhibit which
was allowed vide order dated 07.02.2023. Admittedly amongst the
documents the route permit was not there.
24. This Court finds that the offending vehicle in the instant case
was an auto which was not carrying any passenger and was being
driven by the owner -cum- driver of the vehicle. The said auto was
having the carrying capacity of 3 persons excluding the driver. There
is no such stand taken by the insurance company in the written
statement that this auto was for carrying passengers for hire or
reward. The simple case was that the Tempo did not have the permit.
25. The learned Tribunal did not consider the objection raised by
the insurance company in their written statement regarding absence of
route permit of the offending vehicle, tempo.
26. As already stated above, the written statement of the appellant
was filed and taken on record after closure of the evidence of the
claimants. However, perusal of the written statement of the insurance
company reveals that the insurance company did not take any stand
with regard to the number of persons which the offending auto could
carry and also as to whether the Auto was for carrying passengers for
hire or reward. It only took a plea that the offending auto did not have a
permit.
27. The absence of the aforesaid stand assumes importance.
Considering the number of persons which the offending auto could
carry in this case (that is, 4 including driver which appears from the
insurance policy-exhibit-5), the auto, would not require a permit under
section 66(1) of the Act unless the auto was for carrying passengers for
hire or reward and it would not require a permit even under section 66
(4) read with rule 70 of the rules which requires permit for a motor
vehicle with carrying capacity of 9 or more persons. The reasons for
the aforesaid findings are discussed as under.
28. Relevant definitions as contained in various sub-sections of
section 2 of Motor Vehicles Act, 1988 for the purposes of this case are
quoted as under:
"(7) "Contract carriage" means a motor vehicle which
carries a passenger or passengers for hire or reward and
is engaged under a contract, whether expressed or implied,
for the use of such vehicle as a whole for the carriage or
passengers mentioned therein and entered into by a person
with the holder of a permit in relation to such vehicle or
any person authorized by him in this behalf on a fixed or
an agreed rate or sum-
(a) on a time basis, whether or not with reference to any
route or distance; or
(b) from one point to another,
and in either case, without stopping to pick up or set
down passengers not included in the contract
anywhere during the journey, and includes-
(i) a maxi-cab; and
(ii) a motor-cab notwithstanding that separate fares
are charges for its passengers;
(11) "educational institution bus" means an omnibus,
which is owned by a college, school or other educational
institution and used solely for the purpose of transporting
students or staff of the educational institution in
connection with any of its activities;
(14) "goods carriage" means any motor vehicle
constructed or adapted for use solely for the carriage of
goods, or any motor vehicle not so constructed or adapted
when used for the carriage of goods;
(21) "light motor vehicle" means a transport vehicle or
omnibus the gross vehicle weight of either of which or a
motor car or tractor or road-roller the unladen weight of
any of which, does not exceed, 7,500 kilograms;
(22) "maxi cab" means any motor vehicle constructed or
adapted to carry more than six passengers, but not more
than twelve passengers, excluding the driver, for hire or
reward;
(25) "motor cab" means any motor vehicle constructed or
adapted to carry not more than six passengers excluding
the driver for hire or reward;
(29) "omnibus" means any motor vehicle constructed or
adapted to carry more than six persons excluding the
driver;
(31) "permit" means a permit issued by a State or
Regional Transport Authority or an authority prescribed in
this behalf under this Act authorising the use of a motor
vehicle as a transport vehicle;
(33) "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 purpose 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;
(35) "public service vehicle" means any motor vehicle
used or adapted to be used for the carriage of passengers
for hire or reward, and includes a maxi-cab, a motor-cab,
contract carriage and stage carriage;
(40) "stage carriage" means a motor vehicle constructed
or adapted to carry more than six passengers excluding
the driver for hire or reward at separate fares paid by or
for individual passengers; either for the whole journey or
for stages of the journey;
(47) "transport vehicle" means a public service vehicle, a
goods carriage, an educational institution bus or a private
service vehicle;"
29. Section 66 (1) and 66(4) of Motor Vehicles Act, 1988 are
quoted as under:
"66. Necessity of permits- (1) No owner of a motor
vehicle shall use or permit the use of the vehicle as a
transport vehicle in any public place whether or not
such vehicle is actually carrying any passengers or
goods save in accordance with the conditions of a
permit granted or countersigned by a Regional or State
Transport Authority or any prescribed authority
authorising him the use of the vehicle in that place in
the manner in which the vehicle is being used:
Provided that a stage carriage permit shall,
subject to any condition that may be specified in the
permit, authorise the use of the vehicle as a contract
carriage:
Provided further that a stage carriage permit
may, subject to any conditions that may be specified in
the permit, authorise the use of the vehicle as a goods
carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall
subject to any conditions that may be specified in the
permit, authorise the holder to use the vehicle for the
carriage of goods for or in connection with a trade or
business carried on by him.
2...
3...
(4) Subject to the provisions of sub-section (3), sub-
section (1) shall, if the State Government by rule made
under Section 96 so prescribes, apply to any motor
vehicle adapted to carry more than nine persons
excluding the driver."
30. Jharkhand Motor Vehicle Rules, 2000 have been framed in
exercise of powers conferred, interalia, under sections 96 of Motor
Vehicles Act, 1988. Rule 70 of Jharkhand Motor Vehicle Rules, 2000
is quoted as under:
"70. Application of sub-section (1) of Section 66- The
provisions of sub-section (1) of Section 66 shall apply
to any motor vehicle constructed or adapted to carry
more than nine persons excluding the driver."
31. Section 66(1) of Motor Vehicles Act, 1988 provides that no
owner of a motor vehicle shall use or permit the use of vehicle as a
transport vehicle in any public place without a permit.
Sub-section (3) deals with certain motor vehicles to which the
provision of Sub-section (1) does not apply which include transport
vehicles owned by Central Government or State Government etc. with
which we are not concerned in this case.
Sub-section (4) of section 66 provides that subject to the provision of
sub-section (3), sub-section (1) shall apply to any motor vehicle
adapted to carry more than 9 persons excluding the driver if the State
Government by Rule made under section 96 so prescribed. Rule 70
has been framed in line of section 66(4).
32. This Court finds that Section 66(4) and rule 70 is applicable
irrespective of vehicle used for the carriage of passengers for hire or
reward and it is applicable once any motor vehicle is adapted to carry
more than 9 persons excluding the driver. Such motor vehicle need not
be a transport vehicle as defined under the Act. Apparently, Rule 70
does not curtail the applicability of section 66(1) of the Motor
Vehicles Act, rather it extends to even those motor vehicles which are
not transport vehicle (as defined) but are engaged for carrying
passengers for hire or reward and have been constructed or adapted to
carry more than 9 persons excluding the driver. Since the auto
involved in this case was for carrying 4 persons including the driver,
Section 66(4) and rule 70 do not come into play.
33. Now it is to be examined as to whether a permit was required in
this case under section 66(1) of the Act. As per section 66(1) of the
Motor Vehicles Act,1988, in absence of permit , no owner of a motor
vehicle is permitted to use or permit the use of the vehicle as a
transport vehicle in any public place whether or not such vehicle is
actually carrying any passenger or goods save in accordance with the
conditions of a permit granted or countersigned by a Regional or State
Transport Authority or any prescribed authority authorizing him the
use of the vehicle in that place in the manner in which the vehicle is
being used.
From the definition of permit as defined under section 2(31) and also
from section 66(1) of the Act, this court finds that when a motor
vehicle is used as a transport vehicle a permit in required. This is
over and above motor vehicles covered under Section 66(4) and Rule
70 which may not fall within the definition of a transport vehicle.
34. Transport vehicle has been defined under section 2(47) which
means 'public service vehicle', 'goods carriage', an 'educational
institution bus' or a 'private service vehicle'.
There can be no doubt that the tempo [capacity of 3 persons plus
driver] involved in this case is neither a 'goods carriage', nor an
'educational institution bus' as defined under section 2(14) and 2(11)
of the Act. The offending vehicle-auto involved in this case is also not
a 'private service vehicle' as per the definition under Section 2(35) as
'private service vehicle' is one having carrying capacity of 6 or more.
35. Now, it remains to be examined as to whether the auto involved
in this case would come within the meaning of 'Public service vehicle'
as defined in order to fall within the meaning of 'transport vehicle'
requiring permit under section 66(1) of the Act.
36. 'Public service vehicle' has been defined under section 2(35) to
mean any motor vehicle used or adapted to be used for carriage of
passenger for hire or reward and includes a maxi-cab, motor cab,
contract carriage and stage carriage.
37. The definition of maxi-cab as defined under section 2(22) and
stage carriage as defined under section 2(40) ex-facie would not
include the auto involved in this case which has capacity of only 4
persons including driver. Since there is no material in this case to hold
that the auto involved in this case was for hire or reward, it would also
not fall under the definition of 'Motor cab' as defined under section
2(25) of the Act. The auto will not fall under 'contract carriage' as
defined under section 2(7) also as there is no such material on record
to show that the auto was taken on contract for carrying passenger on
hire or reward. In view of the aforesaid findings, the auto involved in
this case will not fall under the definition of 'public service vehicle'
also and consequently will not fall under the definition of 'motor-cab'.
38. Thus, the Insurance company has failed to prove that the auto
involved in this case is a transport vehicle as defined under Section
2(47) and consequently there was no need to have a permit under
section 66 of the Act. Thus, non-filing of permit by the owner of the
auto has no relevance. Accordingly, the Insurance Company cannot
avoid its liability on the ground of non-filing of permit.
39. In absence of any evidence that the auto involved in the present
case was for hire or reward, no permit is required in terms of sub-
section (1) to Section 66 of the Motor Vehicles Act.
40. So far as the judgement relied upon by the appellant insurance
company reported in (2004) 8 SCC 517 National Insurance Co. Ltd.
v. Challa Upendra Rao, (2004) 8 SCC 517 is concerned, this court
finds that although the said judgement was relating to auto rikshaw but
in the said case there was no dispute regarding the fact that the
concerned auto rikshaw required permit and admittedly it was carrying
three passengers. Further the carrying capacity of the offending
vehicle has not been mentioned in the judgement. Merely because
there were 3 passengers it does not mean that the carrying capacity
was limited to 3 passengers. Apparently, the auto in the said case was
plying and carrying passengers for hire or reward and there was no
dispute regarding requirement of permit. In the said case, as per the
judgement impugned inspite of absence of required permit, the
insurance company was held liable and the Hon'ble supreme court
held that absence of required permit would amount to violation of
condition of policy. There is no dispute with regard to the proposition
of law as laid down by the Hon'ble Supreme Court but the facts and
the materials placed on record in the present case are materially
different from the facts of the case before the Hon'ble Supreme Court.
Accordingly, the said judgement does not help the Insurance
Company in any manner whatsoever.
Accordingly point no. (b) is also against the insurance company and
in favour of the claimants and also the owner of the offending
vehicle (auto- carrying capacity 3 and one driver).
41. In view of the findings recorded with respect to point no. (a)
and (b), this appeal is dismissed.
42. Pending interlocutory application, if any, is dismissed.
43. The statutory amount deposited by the insurance company is
directed to be remitted to the Court concerned and the learned Court
shall disburse the amount subject to satisfaction of the Award.
(Anubha Rawat Choudhary, J.)
Binit
