Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 2879 of 2008 Appellant :- The New India Assurance Co Ltd Respondent :- Ballu @ Dilip Kumar And Others Counsel for Appellant :- Arun Kumar Shukla Counsel for Respondent :- Arun Kumar Singh
Hon'ble Saral Srivastava,J. Order on Ordersheet.
1. Notices were issued by RP/AD for service upon respondents no. 2 and 3 on 27.10.2017.
2. Perused the office report dated 27.02.2018 which states that neither undelivered cover nor any acknowledgment due has been returned after service nor anybody has put in appearance on behalf of the respondents no.2 and 3.
3. The service of notice upon respondents no.2 and 3 is deemed sufficient.
Order on Appeal.
1. Heard learned counsel for the appellant and Sri Arun Kumar Singh, learned counsel for the respondent no.1.
2. The insurance company has assailed the judgement of the Motor Accident Claim Tribunal/Additional District Judge, Court No.1, Kanpur Nagar passed in MACP No.242 of 2004 whereby the Tribunal has awarded Rs.1,50,000/- alongwith 6% interest to the claimants respondents.
3. The only issue raised by the learned counsel appellant in the present appeal is that the insurance company has taken a specific plea in paragraph no.14 of the written statement that the liability of the insurance company is only subject to the condition that the offending vehicle truck no.DN-09-8587 was being driven with valid permit and fitness certificate. He submits that the insurance company has submitted an application on 10.01.2008 to the Tribunal with a prayer to frame following issues:-
"कया दघरटना के वकगाड़ी न. परिमट के मािलकके पासवैधएवं पभावी विफटनस था? यिद नही था तो उसका पभाव?
िदनाक:- 10.01.2008"
4. The said application was rejected of by the Tribunal by the following order:-
"No issue is required to be framed on this score. This fact has to be been seen in the light of law laid down by Hon'ble Supreme Court, if raised and argued, hence, rejected."
5. Learned counsel for the appellant has urged that the issue of valid driving license, registration, route permit and fitness was raised by the appellant before the Tribunal but the Tribunal has not returned any finding on the same. He submits that if the offending vehicle has been plied without valid permit and fitness, there is breach of insurance policy and the appellant cannot be made liable to pay any compensation. In this regard, he has relied upon the judgement of the Apex Court in Amrit Paul Singh and another Vs. Tata AIG General Insurance Company Limited and others 2004 (8) SCC 517 wherein the Apex Court has held that use of a vehicle in a public place without a permit is a fundamental statutory infraction and the insurer is not liable to pay compensation. Paragraph 24 of the judgement is reproduced herein-below:-
"24. 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 equa ted 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 National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 and Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 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 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 that 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 National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 and other cases pertaining to pay and recover principle."
6. Per contra, learned counsel for the claimant respondents submits that for the breach committed by the owner of the offending vehicle, third party should not suffer and, therefore, the compensation should be paid to the claimant respondents.
7. I have heard learned counsel for the parties and perused the record.
8. The copy of the application filed by the appellant before the Tribunal with a prayer for framing additional issue is not disputed by the respondents. Further, a categorical plea in respect of liability of the insurance company has been raised by the appellant in the written statement wherein it has categorically stated that the liability of the insurance company is subject to the condition that the vehicle in question was being plied with a valid permit and fitness.
9. In view of the specific plea raised by the appellant in the written statement, the Tribunal ought to have framed an issue as has been prayed by the appellant insurance company in the application inasmuch as the breach of permit and fitness is the fundamental breach of policy and if the insurance company succeeds in proving the same the insurance company cannot be fastened with the liability to pay compensation.
10. Thus, in the opinion of the Court the Tribunal has erred in not framing the issue as sought by the appellant in the application filed by the appellant for framing additional issue already been extracted above.
11. Thus, for the reasons given above, the appeal is partly allowed only to the extent that the Tribunal is directed to frame additional issue as prayed for by the appellant in the application dated 10.01.2008 for framing additional issue. The findings of the Tribunal on the rest of the issues are affirmed as those have not been disputed by the appellant. The appellant is directed to pay compensation to the claimants respondents in pursuance of the award and it shall be entitled to recover the same from the owner in case the appellant succeeds in proving that the owner has committed breach of policy.
12. It has been further pointed out by the learned counsel for the appellant that under the interim order passed by this Court, the entire awarded amount has been deposited by the insurance company. The Tribunal is directed to release the amount invested under the interim order of this Court to the claimants respondents within a period of two weeks from the date of production of certified copy of this order before him. There shall be no order as to costs.
Order Date :-27.11.2018 S.Sharma