Rajasthan High Court
Dhirendra Singh vs National Insurance Co Ltd And ... on 21 April, 2022
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 5779/2011
1. Dhirendra Singh Asawat son of Sh. Jagdish Singh Asawat
resident of Plot No.29, Gate No3, Rajat Grah Colony, Bundi
----Appellant-non-claimant NO.2 (Owner)
2. Ranjeet Singh son of Bajrang Lal, resident of Sanjay Colony,
Nainwa Road, Bundi
----Appellant/Driver
Versus
1. National Insurance Company throufgh Branch Manager,
Kanchan Sadan, Khoja Gate Road, Bundi.
----respondent/non-claimant No.3
2. Sita Ram Kumhar, son of Phatta resident of Village Astoli,
District Bundi
----Respondent/claimant
For Appellant(s) : Mr. Deepak Pareek
For Respondent(s) : Ms. Raj Sharma
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Order
21/04/2022
Instant appeal has been preferred by the appellants against
the impugned judgment and award dated 10.06.2011 passed by
the Motor Accident Claims Tribunal, Bundi (hereinafter referred to
as 'the Tribunal') in Motor Accident Claim Case No.126/2006
whereby the claim petition filed by the claimant was allowed and
the Insurance company was directed to pay amount of Rs.41000/-
to the claimant and recover the same amount from the appellants-
driver and owner of the vehicle.
Feeling aggrieved by the said direction issued by the
Tribunal, by which the right of recovery has been granted to the
(2 of 4) [CMA-5779/2011]
respondent-Insurance Company to recover the amount of
Rs.41000/- from the appellant, instant appeal has been preferred.
Learned counsel for the appellants submitted that the
appellants have not committed any violation of the conditions of
the Insurance Policy. Vehicle was not used to ply on the highway,
hence, there is no question of getting any permit to ply the same
on national highway. Learned counsel further submits that in the
city of Bundi, the petrol pumps are situated only at national
highway and no petrol pumps are situated within the vicinity of
the city of Bundi, but the Tribunal has overlooked this fact, which
was taken by them in their defence by way of filing their reply to
the claim petition.
In support of his contentions, learned counsel for the
appellant has placed reliance on a judgment passed by the
Karnataka High Court in the case of K.V. Thimmegowda Vs.
Kamalamma by Lrs. reported in (1991) 3 KarLJ 602 where
under the identical situation, the liability was fastened upon the
Insurance Company, as there was no breach of policy.
Per contra, learned counsel for the respondent-Insurance
Company opposed the arguments raised by counsel for the
appellant and further submitted that there was breach of policy ad
the driver was plying the vehicle on national highway without any
permit, hence, no illegality has been committed by the Tribunal
while giving recovery rights to the Insurance Company to recover
the amount of compensation from the driver/owner of the vehicle.
I have heard counsel for the parties and perused the
judgment dated 10.06.2011 and documents available on record.
It was the specific case of the appellant before the Tribunal
that there was no breach of any policy on the part of the appellant
(3 of 4) [CMA-5779/2011]
as the petrol pumps are situated only at the national highway and
for the purpose of getting diesel/fuel, the vehicles are required to
be taken to the petrol pumps and for that purpose, no separate
permit is required. The Tribunal has failed to appreciate this fact
and erred in recording this finding that the vehicle in question was
plight on the national highway without any permit.
Under these similar circumstances, in the case of K.V.
Thimmegowda (supra), the Karnataka High Court has dealt
with the issue and decided the same as under:-
"Section 96(2) of the act sets out the
specific defence available to an insurer. If
on the date of the accident the vehicle was
being used as a stage carriage on a route
in respect of which it had no permit then
probably the insurance company could
have taken a defence under Section 96(2)
(b) 1 (a) of the Act, on the ground that it
was being used in contravention of the
permit. Whatever that may be, the facts of
this case are entirely different. The vehicle
in question was insured and the policy was
in force. The insurance policy, a photocopy
of which was produced at the time of
hearing discloses that the policy was for
the period commencing from 17-9-1974 to
16-9-1975. The accident occurred on 22-4-
1975. Further, as stated by the appellant,
the vehicle was sent from k.r. pet to k.r.
nagar for fetching diesel and it was not
plying as a stage carriage on a route in
respect of which there was no permit and it
was in the course of that journey the bus
had been stopped at chunchnakatte and it
was at that point of time the accident
occurred. From the facts it is clear that the
risk arose on account of the use of the
vehicle in a public place. For these reasons
we answer the question set out first, as
follows: an insurance company is liable to
pay compensation in respect of the injury
to or death of a third party, caused by a
motor accident by a motor vehicle, which is
a stage carriage while plying or being used
lawfully otherwise than as a stage carriage,
at a public place, even if such public place
(4 of 4) [CMA-5779/2011]
does not lie on the route in respect of
which it is permitted to operate as a stage
carriage?"
I am also in agreement with the view taken by the Karnataka
High Court in the case of K.V. Thimmegowda (supra). In view
of the above discussion, the direction issued by the Tribunal while
deciding the claim petition vide order dated 10.06.2011 giving
recovery rights to the insurance company for recovering the
amount of compensation from the appellant is quashed and set
aside.
The appeal stands allowed accordingly.
Stay application and all pending applications also stand
disposed of.
Record be sent back forthwith.
(ANOOP KUMAR DHAND),J
HEENA GANDHI /9
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