FAO No. 3768 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 3768 of 2010 (O&M) Date of decision: 23.11.2011 Rattan Singh and another ........ Appellants Versus Veer Singh and another ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH Present: Mr. JP Sharma, Advocate for the appellants. Mr. Harsh Aggarwal, Advocate for respondent No.2-Insurance Company. JORA SINGH, J. Rattan Singh and Babu Lal-appellants preferred this appeal against the Award dated 4.3.2010, rendered by the learned Motor Accident Claims Tribunal, Narnaul whereby claim petition filed by Veer Singh-respondent/petitioner was accepted directing respondent No. 2- Insurance Company to deposit compensation to the tune of ` 98,790/- with interest @ 6% per annum from the date of petition till realization of the Award with liberty to recover compensation with interest from the insured i.e. Babu Lal-appellant No. 2. Veer Singh-respondent No. 1 filed the main petition for FAO No. 3768 of 2010 (O&M) -2- compensation on the allegation that on 30.12.2007 at about 6.30 p.m. he along with Jagdev Singh was coming from Kund Barmier to Ateli on motor-cycle bearing registration No. HR-34-B-1256. He was on the pillion of the motor-cycle. When they reached near Chandpura bus stand then a truck bearing registration No. RJ-23-G-3254, was noticed parked in front of a hotel on Rewari-Narnaul Road. Rattan Singh- appellant No. 1 suddenly started the truck and without any signal drove the same in reverse gear in a rash and negligent manner and was struck against the motor-cycle. Accident was due to rash and negligent driving of appellant No. 1 and in the accident respondent No.1-Veer Singh, received injuries. Appellants filed joint written statement and contested the claim petition on the allegation that they have no knowledge about the alleged accident dated 30.12.2007 at 6.30 p.m. in the area of village Chandpura. False FIR No. 1 dated 1.1.2008, under Sections 279/337 of the Indian Penal Code, was registered against appellant No.1. Appellant No. 2 is the registered owner of truck bearing registration No. RJ-23-G-3254. Truck was insured with the National Insurance Company Ltd. Accident is the result of negligent driving of motor-cycle bearing registration No. HR-34-B-1256 by respondent No. 1. Insurance Company-respondent No. 2, filed separate written statement by admitting this fact that truck bearing registration No. RJ-23-G-3254 was insured but there was no accident as alleged by the claimant. Driver of the truck was not holding a valid and effective driving licence, registration certificate and route permit at the relevant time and there was a violation of terms and conditions of the Insurance Policy. FAO No. 3768 of 2010 (O&M) -3- From the pleadings of the parties following issues were framed: “1. Whether petitioner Veer Singh suffered injuries in a road accident which took place, on 30.12.2007 in the area of village Chandpura, (Police Station Ateli) due to rash and negligent driving on the part of respondent No. 1, the driver of truck bearing registration No. RJ-23- G-3254? OPP 2. Whether the driver of the truck in question did not hold a valid driving licence, if so to what effect? OPR-3 3. Whether the petitioner is entitled to award of compensation and if so, how much and from whom? OPP 4. Relief.” Evidence was led by both the parties and after completion of evidence, claim petition was accepted and an award of ` 98,790/- with interest @ 6% per annum from the date of petition till realization of the Award in favour of respondent No.1 was passed. Learned counsel for the appellants argued that appellant No. 2 is the owner of the truck bearing registration No. RJ-23-G-3254 and the vehicle was insured. At the time of accident vehicle was being shifted to workshop for repair purposes. Vehicle was not loaded. When the vehicle was not loaded and was being shifted to workshop for repair purposes then route permit was not required. Secondly, no issue was FAO No. 3768 of 2010 (O&M) -4- framed that there was no route permit with the driver/owner at the time of alleged accident. Without issue regarding route permit appellants were not in a position to lead evidence. Requested to set aside the impugned Award and the case be remanded back to the learned Tribunal with a direction to frame issue regarding route permit and decide afresh the case after evidence. Learned counsel for the appellant placed reliance upon AIR 2005 Supreme Court 1431, “State of Orissa and others vs. Bijaya C. Tripathy”. Learned counsel for the Insurance Company argued that no doubt vehicle was insured at the time of accident but no plea of the appellants that at the time of accident vehicle was not loaded and was being shifted to workshop for repair purposes. Evidence is to be led as per pleadings. Insurance Company specifically pleaded that there was no route permit with the appellants. Vehicle was being driven against the terms and conditions of the policy. Appellants were to lead evidence as to whether they had a valid route permit or not? Issues are framed in the presence of learned counsel for the parties. Learned counsel for the appellants did not pray to frame issue regarding route permit/registration certificate. Parties had the knowledge as to what is the controversy between them, so, it was for the appellants to lead cogent and convincing evidence that there was no necessity of route permit, there was no violation of terms and conditions of the policy at the time of accident and driver was holding a valid driving licence. Vehicle was empty and was being shifted to workshop for repair purposes. Without specific plea in the written statement learned counsel for the appellants cannot argue that vehicle was empty at the FAO No. 3768 of 2010 (O&M) -5- time of accident, so, route permit was not required. Admittedly, Babu Lal-respondent No. 2 is the owner of the offending vehicle bearing registration No. RJ-23-G-3254 and at the time of accident, Rattan Singh-appellant No. 1 was the driver. Truck owned by Babu Lal was insured with the National Insurance Company. Babu Lal (owner) is from Rajasthan State. Accident was in the area of Haryana State. Original or copy of route permit was not produced by the appellants. Without route permit appellants were to explain for what purpose the offending vehicle from Rajasthan was being plied in Haryana State. No case of the appellants that earlier to the present occurrence truck bearing registration No. RJ-23-G-3254 had met with an accident and for repair purposes vehicle was being shifted to workshop in the area of Haryana State. Suppose there was some mechanical defect in the vehicle and there was no accident and for repair purposes vehicle was being shifted to the workshop and was not loaded then appellants were expected to plead in the written statement that offending vehicle was registered in Rajasthan State owned by Babu Lal and there was some defect in the vehicle and the same was being shifted to the workshop in the Haryana State, so, there was no necessity of route permit. Evidence is to be led as per pleadings. Evidence led beyond pleadings is to be ignored but no plea of the appellants that at the time of occurrence vehicle was empty and was not loaded. Secondly, the vehicle from Rajasthan State was being brought to Haryana State for repair purposes. Learned counsel for the appellants failed to convince that in the absence of pleading, appellants can argue that vehicle was empty and was being shifted to workshop for repair purposes. At the time of accident there was no route permit with FAO No. 3768 of 2010 (O&M) -6- the appellant what to talk of defective route permit. In State of Orissa and others (supra) Hon'ble Supreme Court in para Nos. 10, 13 and 14 observed as under: “10. The High Court also appears to have been misread Section 66 of the Motor Vehicles Act. All that Section 66 of the Motor Vehicles Act provides is that the owner of a motor vehicle cannot use the vehicle as a transport vehicle in any public place without a permit. Section 66 therefore, merely prevents use of the vehicle as a transport vehicle without a permit. It does not prohibit driving of such a vehicle on a public road. The vehicle can be driven on a public road so long as it is not used as a transport vehicle. To take an extreme example the owner of such a vehicle may use that vehicle for taking his family out for a picnic. Section 66 will not bar such a use. It is thus clear that even in the absence of a permit the vehicle remains a transport vehicle which is capable of being used on a road so long as the vehicle has a valid certificate of fitness and a valid registration certificate. In such cases it has to be presumed that such a vehicle has been “kept for use” irrespective of whether or not it was actually used on the road. 13. In this case it is admitted that the Respondent had never given intimation under Section 10. He had FAO No. 3768 of 2010 (O&M) -7- not paid the tax. Thus the question of refund does not arise. As he had not given intimation it is to be presumed that his vehicle had been used or kept for use within the State. 14. It was submitted that intimation could not be given under Section 10 as, along with the undertaking, the permit also had to be surrendered. It was submitted that as the Respondent did not have a permit he could not surrender a non-existing document and could not thus avail of the provision of respondent did not have a permit all he had to do was to so state in the intimation. His so stating there would have been sufficient and he would have been required to surrender only the other documents mentioned in Section 10. As discussed earlier, offending vehicle is a truck but no pleadings that the vehicle was empty at the time of accident and was being shifted to workshop for repair purposes. In 2004 (7) JT 519, “National Insurance Co. Ltd. vs. Chella Bharathamma” Court in para No. 7 observed as under: “7. Section 149(2) (a) (i) relates to a vehicle not covered by a permit to ply for hire or reward. Section 149(2) reads as follows: " No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of FAO No. 3768 of 2010 (O&M) -8- the proceedings in which the judgment of 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:- (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 (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 FAO No. 3768 of 2010 (O&M) -9- duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of dis-qualification; 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." Section 66 of the Act is also relevant. Same reads as follows: "66. Necessity for permits (1) 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: Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a contract carriage: FAO No. 3768 of 2010 (O&M) -10- Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a goods carriage either when carrying passengers or not: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorize the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. (2) The holder of a goods carriage permit may use the vehicle, for drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed: Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi- trailer. (3) The provisions of sub-section (1) shall not apply - (a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise; (b) to any transport vehicle owned by a local authority or by a person acting under contract FAO No. 3768 of 2010 (O&M) -11- with a local authority and used solely for road cleansing, road watering or conservancy purposes; (c) to any transport vehicle used solely for police, fire brigade or ambulance purposes; (d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses; (e) to any transport vehicle used for towing a disable vehicle or for removing goods from a disabled vehicle to a place of safety; (f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf; (g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf; (h) omitted (i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms; (j) subject to such conditions as the Central Government may, by notification in the Official FAO No. 3768 of 2010 (O&M) -12- Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods; (k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle; (l) omitted. (m) to any transport vehicle which, owing to flood,earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination; (n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify; (o) to any transport vehicle which is subject to a hire-purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of, the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or FAO No. 3768 of 2010 (O&M) -13- (p) to any transport vehicle while proceeding empty to any place for purpose of repair. (4) Subject to the provisions of sub-section (3), sub-section (1) shall, if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver." In the absence of route permit to ply offending vehicle either in Rajasthan State or Haryana State, learned Tribunal rightly observed that appellants have no route permit at the time of accident. In the written statement by the appellants no plea that at the time of accident there was a valid route permit to ply the vehicle in Rajasthan State or Haryana State. Clear cut allegation of the Insurance Company that driver/owner had no route permit at the time of alleged accident. Despite number of opportunities appellants failed to produce the original or copy of the route permit. No doubt, specific issue was not framed regarding route permit but in view of the claim petition and written statement by the owner/driver and Insurance Company parties had the knowledge as to what is the controversy. Issues were framed in the presence of counsel for the parties but at that time there was no request to frame issue regarding route permit. During the pendency of the claim petition no application was moved by the appellants to frame issue regarding route permit. When the issues were framed in the presence of counsel for the parties and full opportunity was given to lead evidence then no prejudice was caused to the appellant if no specific FAO No. 3768 of 2010 (O&M) -14- issue was framed regarding route permit. Vehicle was insured but accident was due to rash and negligent driving by appellant No.1. Insurance Company was directed to deposit compensation as per Award but recovery right was given to the Company to recover Award amount with interest from the insured. If the insured had valid route permit then the same could easily be produced but in the present case, no route permit either to ply the offending vehicle in Rajasthan State or Haryana State. Owner of the vehicle is from Rajasthan and the vehicle was also insured in Rajasthan. Only recovery right was given to the Insurance Company, so, if, no specific issue regarding route permit then Award is not to be set aside. After going through the evidence on file, the learned Tribunal rightly opined that accident was due to rash and negligent driving by the appellant and at the time of accident appellants had no valid route permit. For the reasons recorded above, the instant First Appeal against Order, without merits is dismissed. November 23, 2011 ( JORA SINGH ) rishu JUDGE