IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 469 of 2007 The Oriental Insurance Company Limited .. Appellant. Versus Smt. Renuka Devi and 3 others …. Respondents. Shri D.S. Patni, learned counsel for the appellant. Shri Amit Kapri, learned counsel for the respondent No.4. None has appeared for the claimants/respondents. UDated: 6-8-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred by the Oriental Insurance Company, against the judgment and award dated 3-8-2007, passed by Motor Accident Claims Tribunal/District Judge, Pithoragarh, in MACP No. 4/2006. 2- Brief facts of the case are that on 2.11.2005, one Ganesh Ram died. At about 2.15 P.M. people were accompanying the corpse in Bus No. U.P. 03/1047. Bhawani Ram (deceased) also accompanied the mourners. The said bus met with an accident due to rash and negligence of its driver near Matela bend. Bhawani Ram sustained grievous injuries in the accident and died at the spot. He was a student of B.A. –II year. He used to do the work of painter at the daily wage of Rs. 150/-. According to the claimants he used to give Rs. 3,000/- per month towards the family expenditure. The claimants filed claim petition for a sum of Rs. 5,76,000/-. 3- The opposite party No.1 owner of the offending bus filed written statement and denied the allegations made in the claim petition. He alleged that the driver was plying the bus in a slow speed but at the spot in order to 2 save another vehicle, coming from opposite direction in a rash and negligent manner, overturned and accident has occurred. The Bus was insured with Oriental Insurance Company and the driver was possessing valid driving license. Hence the petition is liable to be dismissed against him. 4- The opposite party/Oriental Insurance Company contested the claim petition by filing its written statement and alleged that the vehicle was overloaded at the time of accident and there was no hill endorsement on the driving license. The deceased himself was negligent for the accident, therefore, the insurance company cannot be held liable to pay any compensation. 5- The opposite party/ driver of the vehicle in question also contested the claim petition and filed his written statement. He alleged that he was driving the vehicle at a moderate speed and in order to save the another vehicle coming from opposite direction he applied emergency brake due to which the bus turned turtle. He also alleged that he had valid driving license and the vehicle was insured with Oriental Insurance Company. 6- The learned Tribunal, on the basis of pleadings of parties, framed relevant issues in the claim petition. Thereafter, parties adduced evidence in support of their case. Thereafter, the learned Tribunal on hearing learned counsel for the parties and considering the material on record, awarded a sum of Rs. 4,77,500/- as compensation along with interest @ 9% per annum from 31.8.2006 to the date of actual payment against the Oriental Insurance Company. 3 7- Feeling aggrieved, the Oriental Insurance Company has preferred this appeal, before this Court. 8- Heard Sri D.S. Patni, learned counsel for the appellant and Sri Amit Kapri, learned counsel for the owner of the vehicle in question and perused the record. 9- Learned counsel for the appellant firstly submitted that the vehicle in question was being used against the terms of the permit as it was permitted to carry passengers but at the time of accident the vehicle was carrying the corpse and the mourners accompanying the corpse which is a clear cut breach of terms and conditions of the permit, as such no liability of payment of compensation can be fastened upon the appellant. 10- Learned counsel for the owner of the offending vehicle has refuted the above submission of the learned counsel for the appellant and contended that the provisions of sub-section (1) of Section 66 of the Motor Vehicles Act, do not apply to any transport vehicle used solely for the conveyance of corpses and the mourners accompany the corpses as provided in Section 66 (3)(d) of the Act. He further submitted that vide letter paper No. 44-C the Assistant Regional Transport Officer, Pithoragarh has exempted the bus owners from obtaining permit in respect of the vehicle carrying corpse and mourners. 11- After having considered the rival submissions raised by counsel for the parties and going through the relevant provision and the material on record, I do not find any substance in the submission raised by learned counsel for the appellant. No doubt, Section 66(1) of the Motor Vehicles act provides for the necessity of permits 4 and speaks that 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 authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used. But clause (d) of sub-section (3) of Section 66 of the Act makes a clear provision that the necessity of permits do not apply to any transport vehicle used solely for the conveyance of corpses and the mourners accompany the corpses. 12- D.W.1, Hansa Dutt, owner of the vehicle in question, in his cross examination has stated that his bus was used solely for the conveyance of corpse and the mourners accompanying the corpse. He further alleged that there was no need to obtain permit as the A.R.T.O. Pithogarah had earlier informed the bus owners about this fact. D.W.2, Raju Kumar Mahara, A.R.T.O. Pithorgarh, has deposed that in the letter paper No. 44-C the then A.R.T.O., Pithoragarh has exempted the bus owners from obtaining permit when the vehicle is used for carrying corpse and mourners. The learned Tribunal also recorded a categorical finding that the learned counsel for the parties at the time of hearing have admitted this fact that there is no vehicle for permanent use of carrying corpse and the mourners and the transport vehicles plying in the district are used for this purpose. 13- Therefore, in view of the material on record, it is quite clear that the offending bus being a transport vehicle was solely used for the conveyance of corpse and 5 the mourners accompanying the corpse at the time when it met with an accident and the provision of sub-section (1) of Section 66 of the Act was not applicable to the said vehicle. Further, as stated above, the A.R.T.O. Pithoragarh has made an arrangement in the District exempting the transport vehicle from obtaining permit which is used for carrying corpse and the mourners. Hence, the learned Tribunal was justified in interpreting the provision of Section 66(3)(d) of the Act and fixing the liability of the insurer of the offending vehicle for payment of compensation. 14- Learned counsel for the appellant has further submitted that the vehicle was overloaded, which is complete breach of condition of policy, therefore, the insurer cannot be held liable to pay any compensation. 15- This submission has also no force. P.W.2, Johari Ram is the eyewitness of the accident. In his cross-examination this witness has denied the suggestion of the insurance company that 40-50 persons were got injured in the accident and he has alleged that 30-35 persons received injuries in the accident. Paper No.55- C/7 list of injured has been attached with the report of surveyor. In this list 29 names have been typed and the other names are handwritten. The Surveyor Mohan Singh Dangwal has been produced as D.W.4. This witness could not tell as to from whom he could detect the names of the injured persons. The said list of injured persons has not been proved by reliable and cogent evidence. Against this, D.W.3, Mohan Singh, driver of the offending bus, has been produced before the Tribunal. He has deposed that 30-35 persons were sitting in the offending bus at the time of accident. This witness has categorically denied the suggestion of the insurance 6 company that about 50 persons were sitting inside the bus and 8 persons were on its roof. Therefore, the insurance company could not substantiate the allegation of the overloading by adducing cogent and reliable evidence, whereas the owner and the claimants have adduced the reliable and plausible evidence that the bus was carrying 30-35 persons. The learned Tribunal has rightly rejected the plea of overloading. I again do not find any infirmity and illegality in the finding arrived at by the learned Tribunal on the point of overloading also. 16- No other point has been pressed before me. 17- In view of the discussion made above, the appeal lacks merit and is liable to be dismissed. 18- Accordingly, the appeal is dismissed. The impugned judgment and award dated 3-8-2007 passed by the learned Tribunal, is confirmed. 19- The statutory amount of compensation deposited within this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB