Heard Sri Adnand Ahmad for the appellant, Sri Kushagra Dixit, Advocate, holding brief of Sri Prashant Kumar, learned counsel for the Insurance Company though present but he submits that he has no instructions in the matter, accordingly, the Court has heard the learned counsel for the appellant and proceeded to decide the above appeal on merits as the appeal is of the year 2003 and on that two occasions the matter has already been adjourned at the behest of the learned counsel for the respondent Insurance Company.
The submission of learned counsel for the appellant is that the vehicle in question did possess a valid permit, however, at the time of the accident, the bus in question was not carrying any passenger and was rather vacant, however, for the place of the accident, it did not have the permit, for the aforesaid route, however, the same is a fundamental breach of the policy condition for which the appellant could be penalized and as such the Tribunal by ignoring the aforesaid aspect of the matter has granted the recovery right to the Insurance Company. It is against the limited grant of recovery right to the insurance company that the appellant has preferred the instant appeal.
Learned counsel for the appellant has drawn the attention of the Court to the statement given by P.W. 2 who is an eye-witness namely Sri Ram Milan who also categorically stated that at the time of the accident, the bus was not carrying any passenger. The appellant who is the owner of the vehicle in question also examined himself as D.W. 1 and in his statement also he had categorically stated that at the time when the accident took place, the bus was not carrying any passenger.
The learned counsel has submitted that despite the categorical evidence which was available on the record, the same has been ignored by the Tribunal which has resulted in miscarriage of justice.
In order to test the veracity of the submissions of the learned counsel for the appellant, briefly the facts giving rise to the above appeal are being noted hereinafter first:-
The claimants-respondents instituted a Claim Petition No. 339 of 2001 with the averments that on 26.08.2001 at around 10:00 AM Yashoda Devi was moving on the Saidpur Siddhaur road near Gram Revtipurva, P.S. Kothi, District Barabanki. At the aforesaid relevant time a bus bearing No. UP 78 N 2527 was being driven rashly and negligently and hit Smt. Yashoda Devi which led to her death at the spot. It is in respect thereto that the Claim Petition was filed.
The Claim Petition was contested by the owner who filed their written statement who stated that the accident did not occur with the vehicle of the appellant, moreover, it stated that his bus was duly insured by means of the cover note No. 28703 which was valid and effective for the period 16.07.2001 to 02.11.2001. It was further submitted that the bus in question did possess all the valid papers and as such if at all any award is passed by the Tribunal, the same shall be indemnified by the Insurance Company.
Upon the pleadings of the parties, the Tribunal framed the relevant issues and while dealing with the issue no. 1, it recorded a finding that the accident occurred with the bus No. UP 78 N 2527 and that the aforesaid vehicle had a valid insurance on the date of the accident. However, while dealing with issue no. 4, it found that the bus had a valid permit but since it was found on a different route other than for which the route was valid in terms of the permit and that the appellant could not bring on record any cogent evidence by which it could be ascertained that the bus was vacant and was not carrying passengers at the time of the accident hence it decided the issue no. 4 accordingly, and thereafter a total sum of Rs. 62,833/- was assessed as compensation along with 6% interest which was allowed by means of the award dated 31.05.2003. It is this award which has been assailed in the instant appeal.
The Court has considered the submissions of learned counsel for the parties and perused the record.
The permit of the bus in question was brought on record bearing Paper No. Ga-21. It is also not in dispute that the vehicle was duly insured. From the perusal of the evidence available on record, it clearly indicates that the claimant-witness P.W. 2 who is an eye-witness had categorically made a statement in his cross-examination that at the time of the accident, the bus in question was not carrying any passenger. The aforesaid statement is also corroborated by the statement of the D.W. 1 who is the appellant before this Court.
In light of the aforesaid statements and there being no other contrary evidence, it was not open for the Tribunal to have overlooked this fact. The Tribunal has gone on a tangent by expressing that since the driver of the vehicle was not examined who would have been the best witness, accordingly, it finds that the fact that the bus was not carrying passengers was not duly established.
This Court considering the material available on record is not in agreement with the finding returned by the Tribunal on issue no. 4.
The Claimant-witness clearly made a statement regarding the bus being vacant which also find corroboration from the categorical statement of the bus owner. No other material was available on record to belie the aforesaid statement and in light thereof it was not open for the Tribunal to have drawn any other inference from the material which was available on record.
In light of the fact that the permit was not disputed and the insurance policy was valid at the time of the accident merely because the bus in question was found at a place which was not covered by the permit at the relevant time and that too being vacant and not carrying passengers cannot be treated as a fundamental breach of the policy to disentitle the appellant from the benefit of being indemnified.
In view of the above, this Court is satisfied that the issue no. 4 has not been correctly decided. This Court finds that the vehicle in question was duly insured and had valid permit. The existence of the vacant bus being driven by its driver at a place which was not the area concerned by the route permit will not make the permit invalid nor it is a fundamental breach of the policy condition to disentitle the appellant from the benefit of the policy. Accordingly, this Court finds that the ends of justice can be met if the award dated 31.05.2003 is modified to the extent that the amount as awarded by the Tribunal shall be indemnified entirely by the Insurance Company and the right of the recovery given by the Tribunal to the Insurance Company is set aside by this Court.
With the aforesaid, the appeal is partly allowed and it is made clear that the entire amount shall be borne by the Insurance Company and it shall have no right of recovery against the appellant. There shall be no order as to costs.
The office is directed to remit the lower court record to the Tribunal concerned within a period of two weeks.
Order Date :- 26.11.2019/Asheesh