Mrs. Fathima Saira Banu Vs Mr. Kashinath Mahadev Sankpal

THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY/SET-ASIDE THE JUDGMENT AND AWARD DATED 20.07.2017 IN MVC NO.283/2016 PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE, MACT, D.K. MANGALURU AND CLAIM PETITION BE ALLOWED AS PRAYED FOR BY ALLOWING THIS APPEAL IN THE ENDS OF JUSTICE.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.11.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO

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CAV JUDGMENT

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This appeal is filed by the appellant/claimant seeking

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to set aside the judgment and award dated 20.07.2017, on the file of the Principal District Judge, MACT, D.K, Mangaluru, passed in MVC No.283/2016.

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The appellant herein is the claimant before the Tribunal, respondents No.1 and 2 herein are the

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MFA No. 1699 of 2018

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Respondent No.1 is the owner and Respondent No.2 is the Insurance Company.

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The facts leading to the filing of this appeal are that:

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On 19.07.2015 at 1.30 p.m., when Mohammed Shamim, son of the petitioner was driving Honda City car bearing No.KA-19/ME-7482 by observing traffic rules, the driver of lorry bearing Reg.No.MH-11-AL-2915 came in a rash and negligent manner and dashed to the right side of petitioner’s car, as a result, the petitioner’s car was damaged. The petitioner is the RC owner of the car. The damage to the vehicle was assessed by M/s.Patel Cars Pvt. Ltd., and was in their custody from 22.12.2015 to 13.06.2016 for repairs. The petitioner claims that she has spent Rs.82,722/- towards repair charges, Rs.4,850/towards survey charges and Rs.22,000/- for hiring charges. Due to the accident, value of the car is reduced to Rs.1,00,000/-. The lorry of the respondent No.1 is insured with respondent No.2 and both the respondents are liable to pay compensation.

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MFA No. 1699 of 2018

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Respondent No.1 was placed exparte and

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Respondent No.2 appeared through counsel and filed written statement.

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Respondent No.2-Insurance Company admitted that the insurance policy has been issued to Lorry No.MH11-AL-2915, which was in force from 17.01.2015 to 16.01.2016.

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The petitioner got examined herself and two other witnesses as P.W.1 to P.W.3 and got marked 08 documents. The 2^nd respondent got marked one witness as R.W.1 and got marked 05 documents.

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As per Ex.P3- surveyor’s report, the cost of the repair of car and profession fee was valued at Rs.80,275/-. As per receipt issued by P.W.3, a sum of Rs.82,722/- was spent towards repair charges and placement of spare parts. Survey charges were valued aqt Rs.4,850/- and Rs.22,000/- was spent by the petitioner for hiring a car for 22 days and Rs.2,200/- was spent towards engaging autorickshaw.

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MFA No. 1699 of 2018

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The Tribunal has allowed the petition in part and

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awarded a sum of Rs.89,800/- with 6% interest per annum and cost of Rs.2,000/- to be deposited by Insurance Company within 60 days from the date of award. The Tribunal has awarded to release the entire amount in favour of the appellant.

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Heard the learned counsel appearing on both sides and perused the materials on record.

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The learned counsel appearing for the appellant would contend that the compensation awarded by the Tribunal is on the lower side. The petitioner has spent considerable amount towards repair charges, hiring of other vehicle and idling charges. Further there is a reduction in the value of the car an extent of Rs.1,00,000/-.

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It is also contended that the Tribunal also failed to note that the Insurance Company has admitted that third party risk is covered under the Policy. There is no clause in the policy to absolve the liability on the ground of

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MFA No. 1699 of 2018

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plying the vehicle outside permit area. It is further contended that as per Amrit Paul Singh and Another v Tata Aig General Insurance Company Insurance Company Limited and others reported in (2018) SC 2662, if there is no valid permit, the insurance company has to pay the compensation and recover the same from the owner of the offending vehicle.

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Learned counsel for the appellant/claimant further contended that the Insurance Company is liable to pay compensation and quantum of compensation is also on the lower side. It is has relied upon the Judgment of co-ordinate Bench of this Court in MFA No.5729/2014 (DD 05.05.2021) wherein the appeal has been partly allowed and it has been held that the Insurance Company has to pay the entire compensation and the owner of the vehicle is absolved of the liability to pay compensation.

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Learned counsel for the Respondent No.2 – Insurance Company that the vehicle was plying in Karnataka, while it had no national permit and the vehicle was allowed only in Maharashtra. Hence, there is clear

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MFA No. 1699 of 2018

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violation of the policy conditions and there is no liability against the Insurance Company. It is contended that the Tribunal has rightly held that the owner of the vehicle is liable to pay the compensation.

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Learned counsel for Respondent No.2-Insurance Company has contended that the insured vehicle had no valid permit to drive the vehicle outside the State. But in the present case, the vehicle is having permit to drive in Maharashtra only, but not having national permit and at the same time, the accident occurred in Karnataka State. As such, the appellant is not having a valid permit and the insurer is not liable to pay the compensation to the appellant.

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Learned counsel for the appellant has contended that as per the Ex.R2, policy was in force and the Insurance Company has not taken any defence of not having valid permit in their statement and further, there is no clause in the policy excluding liability on the ground of plying outside permit area and also R.W.1 admits that the third-party rights are covered under this policy. In view of

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MFA No. 1699 of 2018

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the above contentions, the counsel for the appellant relied upon the Judgment of the Hon’ble Supreme Court in

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Amrit Paul Singh and Another v Tata Aig General Insurance Company Insurance Company Limited and others reported in (2018) SC 2662 regarding pay and recovery principle. Para Nos.23 and 24 of the said Judgment are extracted hereunder:

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23. The Court held that when the intention of the legislature is quite clear to the effect that a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there was evidence on record that Respondent 2 plied the vehicle without the insurance in violation of the statutory provision contained in Section 146 of the Act, the High Court could not have mulcted the liability on the financier and finally, the financier was absolved of the liability.

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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 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 [National Insurance Co. Ltd. v. Swaran Singh,

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MFA No. 1699 of 2018

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(2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Lakhmi Chand [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 : (2016) 2 SCC (Civ) 45] 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 Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and other cases pertaining to pay and recover principle.

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Further, learned counsel for the appellant has relied upon the Judgment of the co-ordinate Bench of this Court in MFA No.5729 of 2014 dated 05.05.2021 wherein at paragraphs Nos.6 to 8 has held as under:

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“6. In so far as the question with regard to the liability of the Insurance Company to pay compensation when the accident occurred at a place not covered by the permit resulting in deviation of the terms and conditions of the permit is concerned, the said defence urged on behalf of the Insurance Company contending that there was breach of the terms and conditions of the Insurance Policy is not one of the defences available to the Insurance Company under Section 149(2)(a) of the Motor Vehicles Act, which reads as under:-

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149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks - (1) xxxxxxx

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(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:— (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:—

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(i) a condition excluding the use of the vehicle—

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(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

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(b) for organised racing and speed testing, or

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(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

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(d) without side-car being attached where the vehicle is a motor cycle; or

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(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

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(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion;

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or

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7. As can be seen from the aforesaid provision, a defence available to the Insurance company for breach of a condition of the insurance policy in relation to a permit is available under two circumstances viz.,

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Clause (a)(i)(a) of Section 149(2), which stipulates that the vehicle should have breached a condition in the policy regarding usage of the vehicle for hire or reward.

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Clause (a)(i)(c) of Section 149(2), which stipulates that the vehicle is used for a purpose not allowed by the permit in the case of a transport vehicle.

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8. The undisputed material on record in the instant case clearly establishes that the defence of deviation of the permit conditions urged on behalf of the Insurance Company does not attract either of the aforesaid defences available to the Insurance Company as held by this Court in the decisions referred to supra; in other words, in the facts and circumstances of the instant case, the specific defence urged on behalf of the Insurance Company to avoid its liability to pay compensation on account of deviation of the permit conditions is clearly not one of the defences available to the Insurance Company under Section 149 of the Act, as can be seen not only from the aforesaid provisions but also from the decisions of this Court referred to supra.”

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On hearing the above submissions, regarding enhancement of compensation, sum of Rs.89,800/compensation awarded by the Tribunal along with interest at the rate of 6% p.a, from the date of petition till realization with cost of Rs.2,000/- is just and reasonable and requires no interference.

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Regarding liability, the Tribunal has observed

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that Respondent No.1 is the RC owner of vehicle lorry

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MFA No. 1699 of 2018

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bearing Reg.No.MH-11-AL-2915 and the Respondent No.2 is the insurance company. RW.1 has deposed that lorry bearing Reg.No.MH-11-AL-2915 had no India permit or Nation perimit at the time of accident. The national permit was lapsed on 04.11.2014, prior to the date of accident. It is observed that the Respondent No.1 has violated the terms and conditions of the Insurance policy. As per Sub-Section (2) of Section 149 of Motor Vehicle Act, 1988 (hereinafter referred to as ‘the Act’, for short) when the Insurance Company established the fact that the driver was not holding driving licence, then as per Subsections (1), (4), (7) of Section 149 of the Act, the Insurance Company shall satisfy the claim in respect of third parties and then recover the same from the owner of the offending vehicle. Accordingly, the order of pay and recovery is made as per the principle of law laid down by the Hon’ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER

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reported in (2018) 3 SCC 208 and also as per the full bench decision of this Court in the case of NEW INDIA

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MFA No. 1699 of 2018

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ASSURANCE COMPANY LIMITED VS. YELLAVVA AND

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ANOTHER reported in 2020 ACJ 2560. Accordingly, an

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order of pay and recovery is made. To this extent, the judgment and award passed by the Tribunal has to be modified.

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Accordingly, for the foregoing reasons, I

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proceed to pass the following:

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ORDER

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i) The appeal is allowed-in-part ;

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ii) The judgment and award dated 20.07.2017, on the file of the Principal District Judge, MACT, D.K, Mangaluru, passed in MVC No.283/2016, is modified;

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iii) The appellant – claimant is entitled for total compensation of Rs.89,800/- along with interest at the rate of 7.5% per annum as awarded by the Tribunal.

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iv) The compensation amount along with accrued interest if any, shall be deposited by the Insurance Company, within eight weeks from the date of filing of the petition till realization

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and recover the same from the owner of the offending vehicle;

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v) Registry is directed to send back the Records to the Tribunal, along with certified copy of the judgment passed by this Court forthwith.

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Sd/(DR.K.MANMADHA RAO) JUDGE

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bnv

Mrs. Fathima Saira Banu v. Mr. Kashinath Mahadev Sankpal

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Mrs. Fathima Saira Banu v. Mr. Kashinath Mahadev Sankpal

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