United India Insurance Co. Ltd vs Paru And Ors
2024 Latest Caselaw 7500 Raj

Rajasthan High Court - Jodhpur

United India Insurance Co. Ltd vs Paru And Ors on 2 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:35304]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  S.B. Civil Misc. Appeal No. 2729/2016
United India Insurance Co. Ltd., Station Road Barmer Through
Its Authorized Signatory, United India Insurance Co. Ltd, 2Nd
Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj.
                                                                     ----Appellant
                                     Versus
1.       Samaaram       S/o     Chimnaram,           Village      Dindava,   Tehsil
         Chouthan, District Barmer.
2.       Tulcha Ram S/o Ramlal, Sadram Ki Beri, Tehsil And Police
         Station Sedwa, District Barmer.
3.       Omprakash S/o Purshotumdass, Barmer
                                                                  ----Respondents
                               Connected With
                  S.B. Civil Misc. Appeal No. 2692/2016
United India Insurance Company Limited, Station Road Barmer
Through Its Authorized Signatory, United India Insurance Co.
Ltd, 2Nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj
                                                                     ----Appellant
                                     Versus
1.       Hukmaram S/o Khumaram, Tehsil- Sanchore District-
         Jalore
2.       Tulcha Ram S/o Ramlal, Sadram Ki Beri Tehsil And Police
         Station Sedwa, District- Barmer
3.       Omprakash S/o Purshotumdass, Barmer
                                                                  ----Respondents
                  S.B. Civil Misc. Appeal No. 2693/2016
United India Insurance Company Limited, Station Road Barmer
Through Its Authorized Signatory, United India Insurance Co.
Ltd, 2Nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj
                                                                     ----Appellant
                                     Versus
1.       Hukmaram S/o Khumaram, Village- Aarva Tehsil- Sanhore
         District- Jalore
2.       Chainaram S/o Khumaram, Village- Aarva Tehsil- Sanhore
         District- Jalore


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3.       Bheraram S/o Khumaram, Village- Aarva Tehsil- Sanhore
         District- Jalore
4.       Jaharam S/o Khumaram, Village- Aarva Tehsil- Sanhore
         District- Jalore
5.       Tulcha Ram S/o Ramlal, Sadram Ki Beri Tehsil And Police
         Station Sedwa, District- Barmer
6.       Omprakash S/o Purshotumdass, Barmer
                                                                 ----Respondents
                 S.B. Civil Misc. Appeal No. 2698/2016
United India Insurance Co. Ltd., Station Road Barmer Through
Its Authorized Signatory, United India Insurance Co. Ltd, 2Nd
Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj.
                                                                    ----Appellant
                                    Versus
1.       Kewlaram S/o Alaram, Dindava Tehsil Chouthan, District
         Barmer
2.       Tulcha Ram S/o Ramlal, Sadram Ki Beri, Tehsil And Police
         Station Sedwa, District Barmer.
3.       Omprakash S/o Purshotumdass, Barmer
                                                                 ----Respondents
                 S.B. Civil Misc. Appeal No. 2701/2016
United India Insurance Co., Ltd., Station Road Barmer Through
Its Authorized Signatory, United India Insurance Co. Ltd, 2Nd
Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj.
                                                                    ----Appellant
                                    Versus
1.       Ravaram     S/o     Chimnaram,            Village       Dindava,   Tehsil
         Chouthan, District Barmer.
2.       Tulcha Ram S/o Ramlal, Sadram Ki Beri, Tehsil And Police
         Station Sedwa, District Barmer.
3.       Omprakash S/o Purshotumdass, Barmer
                                                                 ----Respondents
                 S.B. Civil Misc. Appeal No. 2735/2016
United India Insurance Co., Ltd., Station Road Barmer Through
Its Authorized Signatory, United India Insurance Co. Ltd, 2Nd
Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj.


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                                                                    ----Appellant
                                    Versus
1.       Phooli W/o Chimnaram, Kolio Ki Basti, Dindava, Tehsil
         Chouthan District Barmer
2.       Samaram S/o Chimnaram, Kolio Ki Basti, Dindava, Tehsil
         Chouthan District Barmer
3.       Mani W/o Samaram, Kolio Ki Basti, Dindava, Tehsil
         Chouthan District Barmer
4.       Tulcha Ram S/o Ramlal, Sadram Ki Beri, Tehsil And Police
         Station Sedwa, District Barmer.
5.       Omprakash S/o Purshotumdass, Barmer
                                                                 ----Respondents
                 S.B. Civil Misc. Appeal No. 2738/2016
United India Insurance Company Limited, Station Road Barmer
Through Its Authorized Signatory, United India Insurance Co.
Ltd, 2Nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj
                                                                    ----Appellant
                                    Versus
1.       Jamna W/o Late Shri Dhannaram, Village- Madavav,
         Tehsil-Chouthan, District- Barmer
2.       Nimbaram S/o Late Shri Dhannaram, Village- Madavav,
         Tehsil-Chouthan, District- Barmer
3.       Poonmaram S/o Late Shri Dhannaram, Village- Madavav,
         Tehsil-Chouthan, District- Barmer
4.       Manglaram S/o Late Shri Dhannaram, Village- Madavav,
         Tehsil-Chouthan, District- Barmer
5.       Moolaram S/o Late Shri Dhannaram, Village- Madavav,
         Tehsil-Chouthan, District- Barmer
6.       Tulcha Ram S/o Ramlal, Sadram Ki Beri Tehsil And Police
         Station Sedwa, District- Barmer
7.       Omprakash S/o Purshotumdass, Barmer
                                                                 ----Respondents
                 S.B. Civil Misc. Appeal No. 2739/2016
United India Insurance Company Limited, Station Road Barmer
Through Its Authorized Signatory, United India Insurance Co.
Ltd, 2Nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj


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                                                                         ----Appellant
                                         Versus
   1.      Paru W/o Late Sh. Kanjiram, Village- Tarla, Tehsil-
           Chouthan, District- Barmer
   2.      Ramesh S/o Late Sh. Kanjiram, Village- Tarla, Tehsil-
           Chouthan, District- Barmer
   3.      Pnchu W/o Ramesh, Village- Tarla, Tehsil- Chouthan,
           District- Barmer
   4.      Tulcha Ram S/o Ramlal, Sadram Ki Beri Tehsil And Police
           Station Sedwa, District- Barmer
   5.      Omprakash S/o Purshotumdass, Barmer
                                                                      ----Respondents


   For Appellant(s)              :    Mr. Anil Bachhawat with
                                      Mr. M.P. Goswami
   For Respondent(s)             :    Mr. Sanjay Gupta for Owner and
                                      Driver


                 HON'BLE DR. JUSTICE NUPUR BHATI

Judgment REPORTABLE Reserved on: 27/08/2024 Pronounced on: 02/09/2024

1. These appeals have been preferred by the

Appellant/Insurance Company under Section 173 of the Motor

Vehicles Act, 1988 (hereinafter as 'the Act') against the common

judgment and award dated 11.08.2016(hereinafter as 'the

impugned award') passed by learned MACT whereby the learned

tribunal has partly allowed claims of the respective claimants in

MAC Case no. 414/2015 (Injury matter), MAC Case No. 413/2015

(Injury matter), MAC Case No. 416/2015 (Death matter), MAC

Case No. 417/2015 (Death matter), MAC Case No. 415/2015

(Injury matter), MAC Case No. 419/2015 (Death Matter), MAC

Case No. 589/2015 (Death matter) and MAC Case No. 418/2015

[2024:RJ-JD:35304] (5 of 23) [CMA-2729/2016]

(Death matter) and the Appellant/Insurance Company along with

the Owner and driver of the offending vehicle has been held jointly

and severally liable to pay the compensation. These appeals have

been filed seeking quashing of the impugned award in respect of

the above Claim petitions. As these appeals arise out of the same

accident the facts of appeal no. S.B. C.M.A. No. 2729/2016 are

being taken, illustratively.

2. Briefly stated, the facts of the case are that on 26.08.2012

the claimants, after getting Eye Surgery/Eye Treatment at an Eye

Health Camp organized at Barmer Netra Jyoti Hospital, Barmer

were returning to their respective destinations along with their

relatives onboard the Mini Bus bearing registration no. RJ04 PA

0580(hereinafter as 'the offending vehicle') of Barmer Jan Seva

Samiti, which was being driven negligently and at high speed by

Tulcharam (hereinafter as 'Driver/Respondent No. 2') and at

around 12:00PM - 12:30PM on 26.08.2012, the vehicle turned

turtle as a result of burst of its rear tyre near Surat ki Beri on

N.H.-15. As a result of the accident some of the passengers

travelling in the vehicle died and others sustained injuries. On the

written complaint of one- Ramesh who was also traveling in the

vehicle, the police registered FIR No. 151/12 and after

investigation submitted a Chargesheet against the

Driver/Respondent No. 2. The claimants filed their respective

claim petitions before the learned tribunal seeking compensation.

3. It was averred in the claim petitions by the claimants that

Omprakash (Respondent no. 3/Owner) and Driver/Respondent No.

2 are the owner and driver of the vehicle respectively and the

[2024:RJ-JD:35304] (6 of 23) [CMA-2729/2016]

vehicle was insured with the appellant/insurance company

therefore, they all are jointly and severally liable to pay the

compensation.

4. It was contended by the Respondent no. 3/owner and

Respondent no. 2/driver in their common reply to the claim

petition before the learned tribunal that the accident did not

happen due to the negligent driving. They further contended that

the vehicle was under the control and ownership of Barmer Jan

Seva Samiti, Barmer (A NGO which operates Shelter Homes and

Netra Jyoti Hospital, where economically weak eye-patients are

provided eye treatment/surgeries free of cost). They further

averred in their reply that in alternative if the learned tribunal

finds any negligence on the part of the driver/respondent no. 2

then the appellant/insurance company should be held liable as the

vehicle was insured with it.

5. It was contended by the appellant/insurance company in its

reply to the claim petition before the learned tribunal that around

45-40 passengers were travelling in the vehicle at the time of the

accident however, as per the registration certificate of the vehicle

its seating capacity is only of 20 passengers. It was further alleged

by the appellant/insurance company that the vehicle did not have

any permit and fitness at the time of the accident which is a clear

violation of the insurance policy hence, the appellant/insurance

company is not liable to pay.

6. As per the pleadings of the parties, the learned tribunal

framed four issues which are being reproduced as follows:

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"(1) आया दिनांक 26.08.2012 को दिन के करीब 12.30 बजे धन्नाराम मिनी बस वाहन संख्या आर.जे.04-0580 से धोरीमन्ना होकर अपने गांव जा रहा था तब एन०एच० 15 पर सुरते की बेरी के पास विप्रार्थी संख्या 1 ने बस को तेजगति व लापरवाहीपूर्वक चलाते हुए बस का पिछला टायर फटने से बस पलट गई, जिससे बस में सवार धन्नाराम, के वलाराम, हुकमाराम, खुमाराम, सामाराम, कानजीराम, चिमनाराम व रवाराम के गंभीर चोटें आई तथा धन्नाराम, के वलाराम, खुमाराम, कान्जीराम व चिमनाराम की दौराने इलाज मृत्यु हुई ? (2) क्या क्लेम प्रार्थना पत्र में वर्णितानुसार प्रार्थीगण वांछित प्रतिकर राशि बतौर क्षतिपूर्ति अप्रार्थीगण से संयुक्ततः एवं पृथक-पृथक रूप से प्राप्त करने का अधिकारी है? (3) विप्रार्थी संख्या 3 द्वारा अपने जवाब की विशेष आपत्तियों में उठाई गई प्रतिरक्षा का क्लेम के प्रार्थना पत्र पर क्या प्रभाव पडेगा ? (4) अनुतोष ?"

7. The claimants examined 8 witnesses and exhibited 59

documents(Ex. 1 to 59). On the other hand, the

appellant/insurance company examined Khemchand ('NAW1' -

manager of the appellant/insurance company) and exhibited 4

documents(Ex. A1 to A4). And the respondent no. 3/owner

examined Omprakash ('NAW2' -President of Barmer Jan Seva

Samiti) and exhibited 1 document(A-5).

8. After hearing the parties, the learned tribunal vide the

impugned award dated 11.08.2016 partly allowed the respective

claim petitions filed by the claimants and held the

appellant/insurance company, respondent no. 3/owner and

respondent no. 2/driver jointly and severally liable.

9. Aggrieved by the impugned award, the appellant/insurance

company has preferred these appeals.

10. It is submitted by the learned counsel appearing on behalf of

the appellant/insurance company that approximately 40 persons

were travelling in mini-bus (hereinafter as 'the vehicle') when it

met with the accident on 26.08.2012 however, the Registration

[2024:RJ-JD:35304] (8 of 23) [CMA-2729/2016]

Certificate (Ex.-4) clearly mentions the siting capacity of the

vehicle as only 21 including the driver. Thus, the vehicle was

clearly overloaded.

11. It is further submitted by the learned counsel appearing on

behalf of the appellant/insurance company that the insured vehicle

had not obtained permit to ply the vehicle at route in rural area to

transport any passenger and the same is contrary to Section 66 of

the Act and also of the conditions of the insurance policy.

Therefore, the learned tribunal erred in fastening the liability on

the appellant/insurance company when the insurance policy was

issued with a condition limiting its liability to the effect that the

vehicle must have a valid permit.

12. It is further submitted by the learned counsel appearing on

behalf of the appellant/insurance company that the vehicle was

registered as a "Light Commercial Vehicle" in the name of Barmer

Jan Seva Samiti, Barmer and was insured with the

appellant/insurance company at the time of accident and the

Insurance Policy(Ex.-A1) was a "Passenger Carrying Commercial

Vehicle Liability Only Policy". He further submits that an

ambulance is registered under Section 41(4) of the Act as a type

of vehicle mentioned in point no. (xiv) in table given in the

Appendix X of the Central Motor Vehicles Rules, 1989, thus, the

vehicle in question was a light commercial vehicle and it was

neither registered/endorsed as an ambulance by the registering

authority nor was insured as an ambulance by the appellant

insurance company. He further submits that no exemption from

tax under Rule 28 of the Rajasthan Motor Vehicles Taxation Rules,

[2024:RJ-JD:35304] (9 of 23) [CMA-2729/2016]

1951 was ever sought or provided in the favour of the vehicle and

the respondent no. 3/owner has not placed anything on record in

this respect during his chief deposition as NAW-2. He further

submits that the certificate issued by Collector(Ex.-A5) to Barmer

Jan Seva Samiti does not in itself changes the nature of the

vehicle from a Public service vehicle into an ambulance. He further

submits that the design and construction of the vehicle in question

shows that no emergency medical equipments or support

instruments were installed in the vehicle for transporting any

patient. On the contrary the vehicle was a passenger vehicle as

evident from its 19 seats for the passengers. He further submits

that NAW-1 in his cross examination has stated that the vehicle

was a passenger vehicle. Therefore, in absence of any lawful

document to show that the vehicle was an ambulance the learned

tribunal has wrongly presumed the vehicle as an ambulance and

extended the benefit of Section 66(3)(c) of the Act to it while

ignoring the registration certificate of the vehicle.

13. It is further submitted by the learned counsel appearing on

behalf of the appellant/insurance company that the

indemnification by virtue of the contract can only be ordered when

reciprocal promises within the policy are fulfilled. Therefore, the

tribunal has erred in fastening the liability on the

appellant/insurance company despite there being a violation of the

condition of the insurance policy that the liability of the

appellant/insurance company will only arise if the insured vehicle

has valid permit under Section 66 of the Act.

[2024:RJ-JD:35304] (10 of 23) [CMA-2729/2016]

14. It is further submitted by the learned counsel appearing on

behalf of the appellant/insurance company that the learned

tribunal has erred in considering the vehicle as an ambulance

while ignoring the legal obligation of the insured in respect of the

change in use of the offending vehicle from the public service

vehicle to ambulance without legal formalities. He further submits

that mere contention that at the time of the accident the vehicle

was transporting patients does not make it an ambulance so as to

extend the benefit of Section 66(3)(c) of the Act.

15. The learned counsel appearing on behalf of the

appellant/insurance company placed reliance on the judgment of

the Supreme Court in National Insurance Co. Ltd. v. Challa

Upendra Rao, (2004) 8 SCC 517 to contend that the

appellant/insurance company can avoid its liability under Section

149(2) of the Act, as in the present case there was absence of a

permit and also the vehicle was transporting around 40

passengers which was more than its capacity of 19 passengers

and the appellant/insurance company charged premium for risk of

only 19 passengers.

16. Per contra, it is submitted by the learned counsel appearing

on behalf of the Respondent no. 3/owner that Section 41(4) of the

Act is applicable only when the vehicle is modified. He further

submits that the vehicle was being used for transporting patients

at the time of the accident and thus was being used as an

ambulance, therefore, the permit was not required as per Section

66(3)(c) of the Act.

[2024:RJ-JD:35304] (11 of 23) [CMA-2729/2016]

17. It is further submitted by the learned counsel appearing on

behalf of the Respondent no. 3/owner that the vehicle was being

used by the Barmer Jan Seva Samiti for transporting patient.

Thus, the use and purpose of the vehicle must be considered while

identifying whether the vehicle transporting the patients at the

time of the accident was an ambulance or not.

18. The learned counsel appearing on behalf of the Respondent

no. 3/owner placed reliance on National Insurance Co. Ltd. Vs

Swaran Singh and Ors.[(2004) 3 SCC 297] to contend that the

liability is upon the appellant/insurance company to establish that

the vehicle was being used for any other purposes than that of an

ambulance.

19. Heard learned counsel appearing on behalf of the parties and

perused the material available on record and judgments cited at

the Bar.

20. It is evident from Section 41 of the Act that the registering

authority issues a Registration Certificate under Section 41(4) of

the MV Act, prescribing the type of the motor vehicle, being a type

which the Central Government may specify taking into account its

design, construction and use of the motor vehicle, as per the

specifications made in the Official Gazette. Section 41(4) of the

MV Act reads as follows:

"41. Registration, how to be made.--

(4) In addition to the other particulars required to be included in the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design, construction and use of the motor vehicle, by notification in the Official Gazette, specify."

[2024:RJ-JD:35304] (12 of 23) [CMA-2729/2016]

21. Moreover, this Court finds that it is only after the Registering

Authority is satisfied that the particulars contained in the

application for registration are true and that the vehicle for which

registration certificate is applied for, complies with the

requirements of this Act and the rules made thereunder, upon

production of the said vehicle either before the Registering

Authority itself or any such authority as the State Government

may by order appoint, can proceed with the registration of the

vehicle under Section 44 of the MV Act, 1988(as it stood before

the Motor Vehicles (Amendment) Act, 2019). The relevant

provision is reproduced as under:

"44. Production of vehicle at the time of registration.

--The registering authority shall before proceeding to register a motor vehicle or renew the certificate of registration in respect of a motor vehicle, other than a transport vehicle, require the person applying for registration of the vehicle or, as the case may be, for renewing the certificate of registration to produce the vehicle either before itself or such authority as the State Government may by order appoint in order that the registering authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of this Act and of the rules made thereunder."

21. Thus, this Court finds that only after the Registering

Authority had been satisfied with the compliance made under the

Act as well as the rules made thereunder, a Registration Certificate

(Ex.4) was issued in favour of the offending vehicle (RJ-04-P-580)

registering the vehicle in the name of Barmer Jan Seva Samiti

while recognizing the offending vehicle as 'Light Commercial

[2024:RJ-JD:35304] (13 of 23) [CMA-2729/2016]

Vehicle' with Body Type mentioned in the Registration Certificate

as "Mini-Bus" and not as an Ambulance. Therefore, it cannot be

presumed that the offending vehicle was an Ambulance in the

absence of clear stipulation made in the Registration Certificate of

the offending vehicle which requires the Registering Authority to

specify the body type of vehicle under Section 41(4) of the Act.

22. This Court also takes into consideration that the Central

Government in exercise of its powers conferred by sub-section (4)

of Section 41 of the Motor Vehicles Act, 1988, vide S.O. 1248 (E),

dated 5th November, 2004, published in the Gazette of India,

Extra., Pt. II, Sec. 3(ii), dated 5th November, 2004, has specified

the types of motor vehicles as mentioned in columns 1 and 2 of

the table therein for the purpose of Section 41(4) of the Act and

the ambulance has been mentioned in point no. (xiv) of column

no. 1(i.e., Transport Vehicle) of the table. Also the definition of

'Ambulance' as provided therein means a vehicle that is specially

designed or constructed or modified and equipped and intended to

be used for emergency transportation of persons who are sick,

injured, wounded or otherwise incapacitated. The relevant

provision is reproduced as under:

"(a) "Ambulance" means vehicle specially designed, constructed or modified and equipped and intended to be used for emergency transportation of persons who are sick, injured, wounded or otherwise incapacitated."

However, in the present case, the respondent no. 3/owner, who is

the president of the 'Barmer Jan Seva Samiti, Barmer' has

admitted in his deposition (as NAW-2) before the learned tribunal

that the offending vehicle was regularly being used for

[2024:RJ-JD:35304] (14 of 23) [CMA-2729/2016]

transporting eye-patients to and from Eye Hospital which is run by

the Barmer Jan Seva Samiti, Barmer and also for distributing free

medicines. The relevant part of the deposition of respondent no.

3/owner is as under:

"1. बाड़मेर मुख्यालय पर "बाड़मेर जन सेवा समिति" के नाम से एक रजिस्टर्ड

पंजिबद्ध संस्था कार्यरत है जिसका मैं अध्यक्ष हूँ। उक्त संस्था पिछले लगभग 40 वर्षों

से एक स्वयं सेवी, समाज सेवी संस्था व धर्माथ ट्रस्ट के रुप में वर्ष 1976 से काम

करती है तथा इसके अधीन रैन बसेरा व नैत्र ज्योति चिकित्सालय का संचालन किया

जाता है जिसमें हजारों व्यक्तियों के आँखों का निःशुल्क ईलाज किया जाकर,

आपरेशन किया जाता है और दवाईयों व चश्मे निःशुल्क उपलब्ध करवाये जाते हैं।

इस प्रकार इस संस्था द्वारा राष्ट्रीय अंधता निवारण कार्यक्रम में मुख्य भूमिका निभाते

हुए पुनीत कार्य किया जाता है। जिला कलेक्टर, बाड़मेर व मुख्य चिकित्सा एवं

स्वास्थ्य अधिकारी द्वारा राष्ट्रीय अंधता निवारण कार्यक्रम में संस्था द्वारा निभाई जा

रही भूमिका के लिये जारी किया गया प्रमाण पत्र दिनांक 26.02.2009 पेश कर

रहा हूँ जो प्रदर्श ए-5 है जिसकी फोटो प्रति पेश प्रदर्श ए- 5 ए है।

2. कि "बाड़मेर जन सेवा समिति" द्वारा संचालित नैत्र चिकित्सालय में आँखों के

रोगियों को गांवों से लानें, ले जानें व उन्हें निःशुल्क दवाईयाँ वितरण करनें के संबंध

में संस्था के स्वामित्व का एक मिनि बस वाहन सं० RJ-04-PA-580 का संचालन

भी किया जाता था जिस वाहन का प्रयोग अनन्य रुप से रोगियों को बाद आपरेशन

अपनें गांवों में पँहुचानें व लानें के लिये किया जाता था , जिसमें उनसे किसी प्रकार

की किराये आदि की राशि वसूल नहीं की जाती थी और यह एक जन सेवा के कार्य

के रुप में एम्बूलेन्स का कार्य करती थी। चूंकि यह वाहन अनन्य रुप से एक

एम्बूलेन्स की तरह रोगियों को निःशुल्क लानें का ही कार्य करती है है इसलिये इसके

परमिट की आवश्यकता नहीं रहती है।

3. कि दिनांक 26.08.2012 को तथाकथित दुर्घटना के दिन वाहन नैत्र रोगियों

को बाद आपरेशन, उनके गांवों में भी हमारी पहुचाने के सरथा का कार्य में लिप्त था,

किसी प्रकार के कोमर्शियल यूज में नहीं आ रहा था ने ही मरीजों से कोई किराया

लिया गया था। वक्त दुर्घटना इस वाहन को ड्राईवर द्वारा तेज गति व लापरवाही से

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नहीं चलाया जा रहा था अपितु रास्ते में इस वाहन का पिछला टायर अचानक फट

गया जिससे ड्राईवर का नियन्त्रण वाहन से हट गया और दुर्घटना कारित हो गई

जिसमें इस वाहन के ड्राईवर की कोई लापरवाही नहीं थी और यह एक एक्ट ऑफ

गॉड था, इसलिये प्रार्थीगण को क्षतिपूर्ती अदा करने की कोई जिम्मेवारी विप्रार्थीगण

की नहीं बनती है।..."

Thus, it is an admitted fact that the offending vehicle was

regularly being used to transport the patients who had already

undergone an eye surgery at the Eye Treatment/Surgery Camp at

Barmer Netra Jyoti Hospital, Barmer and at the time of accident

the offending vehicle was not being used to transport the sick,

injured, wounded or otherwise incapacitated in emergency but

was transporting the patients, who have undergone eye

surgery/treatment, to their respective destination in their village

and also there was no complications after the surgery as is

evident from the fact that the patients were being transported to

their respective villages thus, the offending vehicle was not being

used for emergency transportation of patients. Further, nothing

has come on record to show that the offending vehicle was having

any kind of medical instrument/equipment that are necessary for

transportation of patients in a medical emergency. Therefore, the

learned tribunal erred in coming to the conclusion that inasmuch

as the vehicle was transporting the patients who had undergone

eye surgery, thus, the vehicle is an Ambulance.

23. Furthermore, this Court, after arriving at a finding that the

offending vehicle is a Mini-Bus registered in the category of a

"Light Commercial Vehicle" not an ambulance, finds that the

exemption under Section 66(3)(c) of the Act cannot be extended

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to it as the same can be extended only to the vehicles solely being

used for ambulance purposes. Section 66(3) of the Act reads as

under:

"66. Necessity for 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 conditions 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 use of the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.

xxxx (3) The provisions of sub-section (1) shall not apply-- xxxx

(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;"

24. This Court observes that the word used in Section 66(3)(c)

of the Act is "solely", which signifies that only when the vehicle is

being used solely for ambulance purposes, the said sub-section

would be applicable. Further, Section 66(3)(c) of the Act has to be

read with the definition of 'Ambulance' as provided in the Central

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Motor Vehicles Rules, 1989 in the table under the heading "Types

of Motor Vehicles at a Glance" which sufficiently shows that the

ambulance is used for emergency transportation of persons who

are sick, injured, wounded or otherwise incapacitated. However, it

is clear from the material available on record that in the present

case the offending vehicle was not being used for transporting the

patients in case of medical emergency but was merely being used

to transport the patients, who had undergone eye surgery/eye

treatment at the health camp orgnized by the Barmer Jan Seva

Samiti, from the Barmer Netra Jyoti Hospital to their respective

villages, which cannot be said to be an a case of emergency

transportation. Moreover, the offending vehicle was registered as

"Light Commercial Vehicle" with body type mentioned as 'Mini-bus'

and on the other hand it is admitted by the respondent no.

3/owner in his deposition as already discussed in the above

paragraphs that the offending vehicle was regularly being used for

transporting the patients, who had undergone

eye-surgery/treatment, to their respective villages and also for

distribution of free medicines. Further, the Certificate of

Recognition(Ex. 5) that was issued by the collector merely

recognizes the efforts of the Barmer Jan Seva Samiti, Barmer in

organizing health camps to provide free cataract surgeries, which

shows that the organization was regularly involved in organizing

such camps and used the offending vehicle to transport patients to

and from health camps and not for emergency transportation of

patients. Thus, the use of the vehicle cannot be considered as

solely for the ambulance purposes. Therefore, in the considered

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view of this Court, the exception of not having the permit under

Section 66(3)(c) of the Act cannot be extended to the offending

vehicle.

25. Further, in the present case, the respondent no. 3/owner, has

admitted in his deposition (as NAW-2) before the learned tribunal

that the offending vehicle did not require any permit as it was

solely being used for transporting eye-patients to and from Eye

Hospital run by the Barmer Jan Seva Samiti, Barmer and also for

distributing free medicines.

26. Moreover, upon perusal of the record, it is seen that

admittedly the offending vehicle was not having a valid permit and

even after the legal notice dated 17.02.2014 (Ex. 2) was sent by

the appellant/insurance company to the respondent no. 3/owner

to produce the permit and fitness certificate of the offending

vehicle, nothing was placed on record to demonstrate that the

offending vehicle had a valid and effective permit as defined under

Section 2(31) of the MV Act. Section 2(31) of the MV Act reads as

follows:

"(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;"

Thus, the offending vehicle, being registered as a "Light

Commercial Vehicle" ought to have a valid permit for authorising

its use, which it did not have at the time of the accident. Also, as

per the provision of Section 66(1) of the Act the owner is required

to have a permit for using the vehicle as a transport vehicle in any

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public place and shall use it in accordance with the conditions of

the permit granted by the authority.

27. This Court also takes into consideration the judgment passed

by the Hon'ble Apex Court in the case of Amrit Paul Singh and

Ors. Vs. TATA AIG General Insurance Co. Ltd. & Ors reported

in MANU/SC/0582/2018 wherein it has been observed that in the

absence of permit, coupled with the fact that the insured had

failed in demonstrating by way of producing evidence of valid

permit existing, the insurer cannot be held liable. The relevant

paragraph is reproduced as under:

"23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The Appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out Under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a

[2024:RJ-JD:35304] (20 of 23) [CMA-2729/2016]

permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and Ors. cases pertaining to pay and recover principle."

Therefore, when admittedly, there was no valid permit existing in

favour of the offending vehicle and nothing has come on the

record with regard to the existence of a valid and effective permit,

the appellant/Insurance Company cannot be held liable.

28. Thus, after coming to the conclusion that the vehicle did not

have a valid and effective permit, this court is not required to

examine as to how many passengers were being transported in

the offending vehicle at the time of the accident.

29. This Court also finds that the submission of the counsel for

the respondent that since the vehicle had been registered in the

name of the organisation, the owner cannot be held liable, is

baseless inasmuch as the organisation being a legal entity, would

naturally require a person to work as a driver in order to ply the

said vehicle. For the purpose of the same, this Court takes into

consideration the judgment passed by the Coordinate Bench of

this Court in the case of Manager, M/s JK Trust Gramin Vikar

Yojana, Jodhpur v. ICICI Lombard General Insurance

Company Ltd. & Anr. [S.B. Civil Misc Appeal No. 1757 of

2013 decided on 09.01.2014]. The relevant part of the judgment

is reproduced as under:

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"Admittedly, in the present case the insured, owner of the vehicle is JK Trust Gramin Vikas Yojna, which is a charitable trust and the deceased was employee of the said trust. The observations made by the Tribunal that the Insurance Company has not charged any premium for the employee appears to be misplaced in the present case, inasmuch as, the vehicle is owned and insured in the name of public charitable trust and therefore, under the instructions of the said institution, it is the employee only, who would ride the said vehicle as the institution being a legal person cannot drive the said vehicle."

Thus, in the present appeals, too, even when the vehicle had been

registered in the name of the organisation, Barmer Jan Seva

Samiti as per the Registration Certificate (Ex.4), it would require a

driver to drive the offending vehicle and also the respondent no.3/

owner was the president of the said organisation.

30. Thus, this Court finds that firstly, the offending vehicle, duly

registered in accordance with Section 41(4) and 44 of the MV Act

in the category of a Light Commercial Vehicle, with its body type

specified as a "Mini-Bus" cannot be considered as an Ambulance

merely on the basis of the fact that at the time of accident, it was

being used to transport patients who had undergone eye-surgery;

secondly, it was not the case of any medical emergency for the

purpose of which the patients were being transported in the

offending vehicle at the time of the accident in order to provide

them medical aid, rather it was only after the eye-surgery was

completed, that the patients were being transported from the

Barmer Netra Jyoti Hospital to their respective places and

therefore, the vehicle at the time of the accident was being merely

used for the purpose as specified in the Registration Certificate

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(Ex.4), i.e. as a Light Commercial Vehicle and not that of an

Ambulance; thirdly, it is an admitted fact that the offending

vehicle at the time of accident was not holding an effective and

valid permit and also there is nothing on record which

demonstrates that a valid and effective permit was issued in

favour of the offending vehicle and thus, the appellant-insurance

company cannot be held liable for the breach of compliance on

part of the respondent no. 3/owner for not having a valid permit

for the offending vehicle; fourthly, inasmuch as the definition of

"Ambulance" under the Appendix X("Types of Motor Vehicles at a

Glance") of the Central Motor Vehicle Rules, 1989 is concerned,

the offending vehicle was not an Ambulance and also was not

being used for emergency transportation of the persons as

mentioned in the definition, therefore, the exemption under

Section 66(3)(c) of the MV Act, which exempts the vehicles being

used solely for Ambulance purposes to have a permit, cannot be

extended to the offending vehicle.

31. Thus, in view of above discussion, the instant misc. appeals

preferred by the appellant-Insurance Company are partly allowed

and the appellant/insurance company is exonerated from its

liability to pay the compensation as determined by the learned

Tribunal. The impugned award dated 11.08.2016 passed by the

learned tribunal is modified accordingly.

32. If any amount has been disbursed to the

respondents/claimants, the claimants shall refund back the said

amount along with interest @ 6% p.a., however, the respondents/

claimants shall be entitled to get amount of compensation

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awarded by learned Tribunal from respondent No.2 and 3, Driver

and Owner of the vehicle, respectively.

33. Record of the Tribunal be sent back forthwith.

(DR. NUPUR BHATI),J 360-367/devesh/-

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