F.A.O.NO. 1836 OF 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 1836 OF 2007 Date of decision:29th July, 2010 United India Insurance Company Limited .......Appellant Versus Smt. Sushila Devi and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Sanjiv Pabbi, Advocate, for the appellant. None for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company challenges the award on the ground that the deceased was admittedly travelling on the bumper of the vehicle and he was reported to have been injured when the vehicle was taking a turn and when he was thrown out of the body of the bus. The Insurance Company had the benefit of defence under Section 170 of the Motor Vehicles Act (hereinafter referred to as the 'Act') and the learned counsel urges inter alia that the deceased was himself responsible for the accident and therefore, no award could have been passed. F.A.O.NO. 1836 OF 2007 2 2. As far as the first contention is concerned that the deceased himself is responsible for the accident, I find that the claimants have admitted that the deceased was not seated within the bus but standing on the bumper. Section 123 of the Act prohibits any person to be travelling or running board or otherwise than within the body of the vehicle. Bumper is positioned outside the vehicle and therefore, the deceased was doing an act which was impermissible. The conductor of the bus must have also ensured that the vehicle was not allowed to run with persons hanging on to the bus on the bumper. The owner of the bus and the deceased must take responsibility for the accident in equal measure and therefore, I find that the deceased had contributed to the accident and apportion his liability at 50%. 3. As regards the contention that the driver did not have a valid driving licence. I have seen the copy of the policy and it is not possible to verify from the policy that the bus which the driver was driving belonged to the category of HTV. So long as the driver had a transport vehicle endorsement on his licence, I would hold that there is no breach of conditions in the policy and the insurer will therefore, be liable to satisfy the claim to the extent to which the owner was liable. 4. Having regard to my finding that the deceased had contributed to the accident to the extent of 50%, the amount determined by the Tribunal as the entitlement of the claimant namely Rs. 8,21,120/- will have to be halved and only 50% of the same will become payable by the insurer. The amount in F.A.O.NO. 1836 OF 2007 3 excess shall stand abated as on account of the contributory negligence of the deceased. 5. The further contention of the Insurance Company was that the bus had route permit to ply in Aligarh but it was traversing to other areas, not covered by the permit. In my view, it is not a defence available to the Insurance Company under Section 149(2) of the Act which enable the insurer to contend, inter alia, no more than stating that he did not have a permit for the purpose which was not authorised. So long as there is no violation, as regards the purpose of the permit, the insurer cannot escape liability. 6. The award of the Tribunal is modified to the above extent of Rs. 4,10,560/- payable by the Insurer with interest as stipulated under the award and the appeal is partly allowed in the manner referred to above. The appeal is partly allowed. [K.KANNAN] JUDGE 29th July, 2010 Shivani Kaushik