HIGH CQURTOF CHHATTISGARH. BILASPUR L/\ SINGLE BENCH: HON'BLE SHRI R. L. JHANWAR, J. Misc. Appeal (Cl No. 1132/2009 APPELLANT Owner Mohammed Asif Gaffar l^ai^i^ Versus RESPONDENTS : Ku. Gunja Mehar and another ORDER Post for pronouncement on (n September, 2010 _.Y Sd/- R.L. Jbanwar Judge HIGH COURT OF CHHATTISGARH : BILASPUR 7o SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR. J. APPELLANT Owner RESPONDENT No.1 Claimant Respondent No-2 Non-applicant No-2 M.A. (0 No. 1132 of 2009 Mohammed Asif Gaffar, S/o Mohd. Abdul Gaffar, R/o Gaffar Medical Stores, Nehru Chowk, Balauda Bazar, Police Station Balauda Bazar, District Raipur VERSUS 1. Ku. Gunja Mehar, D/o Dhanesh Mehar, aged about 18 years, R/o Village Achhola, Tahsil and District Mahasamund (C.G.) 2. The New India Insurance Company Ltd., Kachhari Chowk, Raipur (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 Appearance: Shri Shiv Kumar Guha, counsel for the appellant. None for respondent No.1 Shri Raj Awasthy, counsel for respondent No.2. ORDER (Passedon^.09.2010) Appellant is the owner ofthe Jeep bearing registration No.C.G. 04/ZA/2576 (henceforth 'the offending vehicle1) who is aggrieved of the impughed award dated 18.03.2009 to the extent it directs the insurance company to pay compensation first and then recover it from the appellant / owner ofthe offending vehicle. 2. In the claim petition filed before the 1st Additional Motor Accidents Claims Tribunal, Raipur (for short 'the Tribunal') the claimant claimed compensation of Rs.2,75,0007- for injuries sustained by her in the motor accident took place on 16.04.2006 due to head collision between T.V.S. Star motorcycle and the offending vehicle. 3. The appellant / owner of the offending vehicle has filed this appeal on the ground that the Tribunal has erred in fastening the liability on the appellant by holding that on the date of accident i.e. 16.04.2006 the driver z of the offending vehicle was not possessed of valid permit to ply the offending vehicle, being transport vehicle, on public place. 4. The learned Tribunal after affording opportunity of hearing to the parties, found that drivers of both the vehicles were negligent resulting into accident, and therefore, awarded lump-sum of Rs.30,000/- and thereafter held that the claimant is entitled to only 50% ofthe amount i.e. Rs.15,000/- because of contributory negligence on her part. The Tribunal also directed the insurance company to pay the compensation first and later on recover the same from the appellant / owner of the offending vehicle. 5. Learned counsel for the appellant argued that learned Tribunal has wrongly held the contributory negligence without appreciating the evidence adduced by him. He further argued that the learned Tribunal has also erred in fastening the liability to pay compensation by holding that on the date of accident, the driver of the offending vehicle was not holding valid permit to ply the same on public road. 6. On the other hand, learned counsel for the insurance company while supporting the impugned award argued that in so far as it relates to finding of the learned Tribunal that the insurance company to pay the compensation first and then recover it from the appellant, the Supreme Court has such inherent power by exercising its jurisdiction under Article 142 of the Constitution of India. He further argued that insurance company should not be held responsible to pay compensation on the grQ^nd that the driver of the offending vehicle was not holding valid permit to ply the offending vehicle on public place and in absence of valid and effective permit the offending jeep cannot be plied by its owner. He placed reliance in the matter of National Insurance Company v. Challa Bharathamma, 2005 (1) T.A.C. 4 (S.C.) 7. I have learned counsel for the parties at length, perused the record of Court below and impugned order. 8. In this case, so far as the question of contributory negligence is concerned, In her evidence, Ku. Gunja MeharA.W.1 has deposed that on the date of incident they were three persons on TVS Star motor cycle and her father was driving the motor cycle. 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High Court was, therefore, not justified in holding the insurer liable. 11. Section 149 (2) (a) (i) of the Motor Vehicles Act relates to a vehicle not covered by a permit to ply for hire or reward. Section 149 (2) of the Act 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 ofthe 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 ofthe bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any ofthe following grounds, namely:- (a) that there has been a breach of a specified condition of the policy, being one ofthe 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 byany 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." 12. Section 66 ofthe Act is also relevant, which reads as under: "66. Necessity for permits.—C\)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 actually carrying any passengers or goods save in accordance with the conditions for 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 : __ "s,j Effi'.. iiy'- 'r Provided 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 contract carriage : 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 specjfied in the permit, authorize the holder to use the vehicle for the carriage of goods for or iti connection with a trade or busihess carried on by him. Section 66of the Act clearly casts a duty on the owner to see that vehicle is not used in a public place except in accordance with the conditions of the permit. Where the owner of the vehicle knew fully well the date on which the permit expired, it was his duty to apply for renewal. On the date in question, the owner was aware that there was no valid permit for the vehiGleto ply on pubiic roads and in spite ofthis knowledge, he allowed thedriver to take out vehicle from his charge. It is the duty of the owner to keep the vehicle in safe custody and prevent its being taken outfor use on the road, unlessthe necessary permitwasobtained. 13. Considering the dictum ofthe Apex Court and provisions of Section 149 (2) and Section 66 of the Motor Vehicles Act, it isclear that no transport vehicle should be plied on a public place without a valid and effective permit whereas in the present case, on the date of incident the offending vehicle (jeep), beingapassengertransportvehicle, was plied on a pyblic place without a valid and ef<:ective permit. After three days of the incident the appellant / owner ofthe offending vehicle got permit which shows that the offending jeep was passenger transport vehicle and was plying on a publjc place without a valid and effective permit. Therefore, the learned Tribunal has rightly exonerated the insurance company. 14. As regards finding of contributory negligence by the Tribunal, on the date of accident, theoffending vehicle (jeep) was being driven by its driver without effective and valid permit, therefore, the owner of the jeep is responsible for the accident. Similarly, the owner of TVS motor cycle is also responsible because he was taking two other riders onmotor cycle, which is against the Motor Vehicles Act. Since both the drivers of the vehicles have been found negligent on their part,the finding of contributory negligence arrived at bytheTribunal is proper. ^' 6> 14. Having thus discussed jn preceding paragraphs, l am of the view that the impugned award passed bythe Tribunal is proper and there is no illegality or infirmity in it requjring interference by this Court. 15. Consequently, the appeal filed by the appellant /owner of the Gffendjng vehicie has no substanlce, whidh is accordingly dismissed. 8d/- R.L. Jhanwar Judge :. ^