Jharkhand High Court
The National Insurance Co. Ltd. Palkot ... vs Dhonjo Orain Wife Of Late Bihari Oraon on 23 January, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Miscellaneous Appeal No.574 of 2016
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The National Insurance Co. Ltd. Palkot Road, Gumla, P.O. and P.S. Gumla,
District Gumla, represented through its Dy. Manager and In-Charge,
Jharkhand Legal Cell, Ranchi, Ranchi Branch- II Premises, Kutchery Road,
Ranchi, P.O. Ranchi, P.S. Kotawli, District Ranchi, Jharkhand
.... .... .... Appellant
Versus
1. Dhonjo Orain wife of Late Bihari Oraon
2. Karuna Baxla, daughter of Late Bihari Oraon
3. Sita Baxla, daughter of Late Bihari Oraon
4. Sahodri Baxla, daughter of Late Bihari Oraon
5. Gangi Baxla, daughter of Late Bihari Oraon
6. Ganga Baxla, son of Late Bihari Oraon
All are residents of Village Manjha Pandiria, Post Office Pandariya,
P.S. Sisai, District Gumla
7. Kariya Devi, wife of Vijay Dhar Sahu, resident of Village Bharda,
P.O. Khora, P.S. Gumla, District Gumla
8. Gyan Sahu, son of Vijay Dhar Sahu, resident of Village Bharda,
P.O. Khora, P.S. Gumla, District Gumla
.... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. G.C. Jha, Advocate
For the Respondent Nos.7&8 : Mr. K.S. Nanda, Advocate
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Order No.24 / Dated : 23.01.2025
Insurance Company has preferred this appeal against the award of
compensation passed in M.A.C. Case No.72/2013 whereby and
whereunder the Tribunal awarded compensation of Rs.4,50,880/- with
interest 7% per annum from the date of institution of the case till its
realization.
2. This appeal has been preferred by the Insurance Company mainly
on three grounds. Firstly, there was breach of policy of insurance as the
driver of the vehicle was not having a valid driving license. Secondly, the
said vehicle being a Tempo, was a commercial vehicle and was being used
for hire or reward and was being plied without any valid permit. Thirdly,
as per the evidence, there was overloading in the said Tempo as the
witnesses have stated that there were 15 - 20 passengers in the said vehicle
which met with an accident whereas as per the registration book of the
Tempo (Exhibit 7), only four persons were permitted to travel in the said
vehicle.
3. Learned counsel on behalf of the owner of the vehicle (respondent
no.7) argued that there is a definite finding of the Tribunal that the driver
was having a valid driving license which had been adduced into evidence
and marked as Exhibit 8. The driving license was issued on 03.08.2015 in
the name of Gyan Sahu and was valid from 14.02.2008 till 13.02.2028 and
the accident took place on 02.05.2013 therefore, the plea that the driver was
not having valid driving license, is not factually correct.
4. Secondly, on the point of permit, it is argued that vehicle carrying
passenger up to four, was not required permit under Section 66(1) of the
Motor Vehicle Act unless it was being used for carrying passengers for hire
or reward. The requirement of permit under Section 66(4) of the Motor
Vehicle Act read with Rule 70, arises only in cases of motor vehicle with
carrying capacity of nine or more persons. Offending vehicle being a
Tempo with carrying capacity of only four, there was no requirement of
any permit and therefore, the learned Tribunal did not accept this plea.
Reliance in this is placed on the judgment of this Court in M.A. No.161 of
2023.
5. Having considered the submissions advanced on behalf of both sides
and on perusal of the record of the case, it is evident that the instant claim
application has been brought for the death of Bihari Oraon in a motor
vehicle accident, who was travelling on a Tempo bearing registration no. JH
07C 4917 at the relevant time of accident. As per the FIR, the accident took
place due to rash and negligent driving of the Tempo by the driver as a
result it overturned, causing death of the deceased. After investigation,
charge sheet was filed against the driver of the Tempo for the rash and
negligent driving resulting in the accident.
6. Witnesses have deposed that 15 - 20 persons were travelling in the
Tempo which met with an accident. Gulfa Oraon (A.W. 1), Amit Toppo
(A.W. 2) and Dhonjo Orain (A.W. 3), who were travelling in the said
Tempo, have given consistent account regarding the manner of accident.
Nevertheless, mere overloading cannot amount to breach of the
fundamental terms and condition of the insurance policy under Section
149(2) of the MV Act.
7. Main point for determination before this Court is whether there was
a breach in terms of insurance policy for want of a valid permit for plying
the tempo.
8. 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;
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), subsection (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."
Jharkhand Motor Vehicle Rules, 2000 has been framed in exercise
of powers conferred, inter alia, under Section 96 of Motor Vehicles Act,
1988. Rule 70 of Jharkhand Motor Vehicle Rules, 2000 provides: -
"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."
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).
9. 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.
10. Required of Permit is thus predicated on two factors viz, if the
vehicle in question had a carrying capacity of nine or more persons and/or,
secondly, if it was used for hire or reward. In Lakhmi Chand v. Reliance
General Insurance, (2016) 3 SCC 100 it has been held,
"16. It becomes very clear from a perusal of the abovementioned
case law of this Court that the insurance company, in order to
avoid liability must not only establish the defence claimed in the
proceeding concerned, but also establish breach on the part of the
owner/insured of the vehicle for which the burden of proof would
rest with the insurance company. In the instant case, the
respondent Company has not produced any evidence on record to
prove that the accident occurred on account of the overloading of
passengers in the goods-carrying vehicle. Further, as has been
held in B.V. Nagaraju [B.V. Nagaraju v. Oriental Insurance Co. Ltd.,
(1996) 4 SCC 647] that for the insurer to avoid his liability, the
breach of the policy must be so fundamental in nature that it
brings the contract to an end. In the instant case, it is undisputed
that the accident was in fact caused on account of the rash and
negligent driving of the offending vehicle by its driver, against
whom a criminal case vide FIR No. 66 of 2010 was registered for
the offences referred to supra under the provisions of IPC".
(Emphasis supplied)
11. In the present case also, the appellant- Insurance Company has not
led any evidence that the sitting capacity of the offending vehicle was more
than nine persons. No evidence has been produced to establish that vehicle
in question was being used for hire or reward. Mere overloading of
passengers cannot lead to an inference of breach of term and condition of
the policy, unless there is a causal connection between the overloading and
the accident. These are issues of fact which were not even been framed by
the learned Tribunal. In the absence of evidence on these counts, no
inference can be drawn regarding the breach of term of insurance policy.
Under the circumstance Miscellaneous Appeal is dismissed.
(Gautam Kumar Choudhary, J.)
Anit
