IN THE HIGH COURT OF UTTARANCHAL AT AINITAL. A.O. No. 301 of 2006 National Insurance Co. Ltd. ..Appellant Versus Janki Prashad Kandpal & others ...Respondents And A.O. No. 532 of 2006 Janki Prasad Kandpal & others ..Appellants Versus National Insurance Co. Ltd. & another..Respondents And A.O. No. 765 of 2006 National Insurance Co. Ltd. ..Appellant Versus Rajendra Singh & others ...Respondents And A.O. No. 766 of 2006 National Insurance Co. Ltd. ..Appellant Versus Pan Singh Tadagi & another ...Respondents And A.O. No. 830 of 2006 Janki Devi & others ..Appellants Versus Ganesh Singh Bargali & another ...Respondents Sri Lalit Belwal, learned counsel for the appellant-insurance company Sri Dinesh Gahtori, learned counsel for the claimants Sri Vishal Singh, learned counsel for respondent no. 5 (owner of vehicle) 2 Dated: June 13, 2008 Hon’ble B.C. Kandpal, J. All these appeals are being heard together and decided by one and common order as the facts and question involved are common and also the vehicle involved in the accident and the date of accident is the same. For the sake of convenience, the facts of A.O. No. 301 of 2006 are being mentioned hereunder. This appeal under Section 173 of Motor Vehicles Act, 1988 has been filed by the Insurance Company against the judgment and award dated 22.12.2005 passed by the Motor Accident Claims Tribunal/Additional District Judge, Almora in M.A.C.C. No. 2 of 2005, Janki Prashad Kandpal and others vs. Ganesh Singh Bargali and another. Brief facts of the case are that on 05.07.2004 the deceased was travelling in a bus bearing registration No. UA04/2877, owned by opposite party no. 1-Sri Ganesh Singh Bargali, from Pithoragarh to Almora. On the said date, when the bus reached near Kalidhar, the driver of the bus lost control over the bus and the bus fell into 500 mtr. deep Khud due to which deceased-Jagdamba Kandpal died. In order to support their case, owner of the said vehicle as well as Insurance Company filed their separate written statements. It has been alleged by the owner of the bus that the driver – Anand Singh is an experienced driver. At the time of the accident, he was driving the bus cautiously 3 but another vehicle coming from the opposite side hit the said bus due to which the accident occurred. National Insurance Company Ltd. alleged in its written statement that it had not received any information about the said accident from the side of the claimants as well as from the concerned police station as mentioned in Motor Vehicles Act, 1988 under Section 158. At the time of the accident, the driver of the said bus was not having the valid driving licence. Therefore, he was not eligible to drive the said vehicle. It has further alleged that there was a breach of policy, at the time of the accident the bus was having more passengers than its actual capacity. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Both the parties adduced their evidence in support of their case. The Tribunal concerned after hearing learned counsel for the parties and after considering the entire evidence available on record awarded an amount of Rs. 1,77,000/- which is to be paid by opposite parties no. 1 and 2 jointly and severally, vide judgment and award dated 22.12.2005. Feeling aggrieved by the impugned judgments and awards passed by the Tribunal concerned, the Insurance Company filed Appeal Nos. 301/2006, 765/2006 and 766/2006 before this Court. Heard Sri Lalit Belwal, learned counsel for the appellant-insurance company, Sri Dinesh Gahtori, learned counsel for the claimants, Sri Vishal Singh, 4 learned counsel for respondent no. 5 (owner of vehicle) and perused the record. The learned counsel for the Insurance Company has vehemently argued that the owner of the vehicle in question has used and permitted the use of the insured vehicle in contravention of the provisions of law contained in Section 66 and 149 (2)(i)(c) of the M.V. Act 1988 and Rule 67(v) of U.P. Motor Vehicles Rules 1998 and as such only the owner of the insured vehicle can be held liable to pay compensation. Accordingly to him the ill-fated vehicle was permitted to carry 30 passengers whereas at the time of the accident 44 passengers were travelling in it and due to overloading the accident had occurred. The learned counsel for the appellant submitted that the overloading is a breach of policy as provided in sub rule (v) of Rule 67 of the U.P. Motor Vehicles Rules, 1998 which reads as under: - “that the maximum number of persons or maximum weight of luggage that may be carried in the vehicle covered by the permit shall not exceed as given in the certificate of registration.” The plea of overloading was taken by the Insurance Company before the Tribunal. In the accident 29 passengers had died and 4 sustained injuries. The Surveyor in his report dated 15.11.2004 has given the list of 30 dead and 14 injured passengers. Since there was breach of policy, therefore this ground was available to the appellant under sub-clause (c) of sub-clause (i) of Clause (a) of sub section (2) of Section 149 of the 5 Motor Vehicles Act, 1988. The learned counsel for the appellant placed reliance to the provision of Section 66 of the Act and submitted that on account of this breach of policy the owner of the vehicle was prohibited to use or permit the use of vehicle as 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. In view of this prohibition created by Section 66 of the Act the owner could not use the motor vehicle even for the purpose for which the permit was granted. Therefore, the vehicle was not being used for the purpose for which the permit was granted. Thus, the ground under sub-clause (c) of sub-clause (i) of Clause (a) of sub-section (2) of Section 149 of the Act is available to challenge the liability fastened upon the beyond the passengers insured under the permit. I think it appropriate to quote the definition of “permit” given in the Motor Vehicles Act, 1988 which reads as under:- “ ‘Permit’ means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle.” It is clear from the definition that the permit is issued by the authority prescribed authorizing the use of a motor vehicle as a transport vehicle. In the instant case the vehicle in question was a passenger vehicle. 6 In order to appreciate the aforesaid submission I think it also appropriate to quote sub-section (2) of Section 149 of the Act, which reads as under: “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 of award is given the insurer had notice though 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- (i) a condition excluding the use of the vehicle, (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 (b) for organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or 7 (d) without side-car being attached where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licenced or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.” From perusal of above, it is clear that the section starts from the word ‘no’ which creates a prohibition for raising the grounds of appeal by the Insurance Company, except on the grounds mentioned in Clause (a) or Clause (b) of sub-section (2). Sub-clause (c) of sub-clause (i) of Clause (a) of sub-section (2) of Section 149 specifically provides for the purpose not allowed by the permit under which the vehicle is used. A motor vehicle is used only for two purposes as comes out from Section 66 of the Act itself; one for carrying the passengers and another for carrying the goods. The ground under the provision of sub-clause (c) aforesaid shall be available to the insurer only in case if goods are being carried by the passenger vehicle or passengers are being carried by a goods vehicle 8 beyond the number mentioned in the permit. Then the use will be for the purpose not allowed by the permit. The breach of all the conditions of permit is not the ground available to the insurer to file an appeal. Only those conditions which are enumerated under Clause (a) of sub-section (2) aforesaid are only the grounds to be raised by the insurer as grounds of appeal. The Hon’ble Supreme Court in the case of B.V. Nagarju Vs. Oriental Insurance CO. Ltd., Divisional Office, Hassan, reported in (1996) 4 Supreme Court Cases, 647, while considering the liability of Insurance Company insurer for payment of compensation to the passengers which were travelling in a goods vehicle beyond the number of passengers held that it was not a fundamental breach. Therefore, the insurer was held liable for payment of compensation, in the present case admittedly, the permit of the vehicle was granted for use of carrying the passengers and accident took place when the vehicle was carrying the passengers. Therefore, this ground is not available to the appellant under sub-clause (c) of sub-clause (i) of Clause (a) of sub-section (2) of Section 149 of the Act. Learned counsel for the appellant also submitted that under clause (b) of Section 170 of the M.V. Act, 1988 all the grounds are available to the appellant in appeal which provides the right to contest the claim on any of the grounds the claim has been made. Therefore, the appellant can press these appeals on the grounds on which the insured could press the appeal. It is well settled that where 9 the conditions precedent to Section 170 of the Act are satisfied and the award is adverse to the insurer, the insurer has right to file an appeal challenging the quantum of compensation or negligence or contributory negligence on the part of the offending vehicle. But in the present appeals the conditions precedent to Section 170 are not available to the appellant in view of the fact that the appellant was already a party before the Tribunal. The insured was contesting the claim petitions. The application U/S 170 of the Act for permission has to be bona fide and filed at the stage when the insured was required to lead his evidence. The Apex Court, while considering this issue has categorically held in para 31 of the case National Insurance Co. Ltd. Chandigarh v. Nicolletta Rohtagi reported in 2003 (1) U.C. 33: 2003 (3) T.A.C. 293 (S.C.) that, “we have already held that unless the conditions precedent specified in Section 170 of the Act are satisfied, Insurance Company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not implead the Insurance Company to contest the claim in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case where an application for 10 permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub- section (2) of Section 149 of 1988 Act. But such application for permission has to be bona fide and filed at the stage where the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award.” In the present matters the ground of challenge is also misconceived and is hereby rejected. Accordingly, A.O. Nos.301/2006,765/2006 and 766/2006 filed by insurer are liable to be dismissed. I have also perused the judgments and awards passed by the Tribunal in A.O. No. 532 of 2006 and A.O. No. 830 of 2006 filed by the claimants for enhancement and I do not find any illegality in the calculation of amount of award. As far as the amount of compensation awarded to the different claimants in different cases connected with this appeal are concerned, it becomes quite clear from the perusal of the impugned judgments and awards passed by the Tribunal that keeping in view the age as well as income of the deceased and the dependency of the claimants, correct multipliers have been adopted by the Tribunal and this Court does not find any reasonable ground to interfere with the findings recorded by the Tribunal. The appeals filed by the Insurance Company are devoid 11 of any merit and are liable to be dismissed. Consequently, A.O. No. 532 of 2006 and A.O. No. 830 of 2006 filed by the claimants for enhancement of the award also stands dismissed. I do not find any merit in these appeals. Accordingly, all these appeals filed by the insurer as well as claimants are dismissed. No order as to costs. The statutory amount, if any, deposited by the appellant-insurance company before this Court be remitted to the Tribunal concerned. Let the copy of this judgment be kept in the files of A.O. Nos. 532/2006, 765/2006, 766/2006 and 830/2006. (B.C. Kandpal, J.) SP