THE HON’BLE MR JUSTICE R. KANTHA RAO A.S.No.1090 of 1992 Date: 09.02.2010 Between: The New India Assurance Co.Ltd.Br.Anantapur …Appellant And T.Mohan Gupta ….Respondent THE HON’BLE MR JUSTICE R. KANTHA RAO A.S.No.1090 of 1992 JUDGMENT: This appeal is filed against the judgment and decree dated 17.02.1992 passed by the Additional Subordinate Judge, Anantapur in O.S.No.244 of 1989. 2. The unsuccessful defendant is the appellant herein. The respondent/plaintiff instituted a suit against the appellant for recovery of an amount of Rs.1,17,180/- and the same was decreed with costs as prayed for. Feeling aggrieved, the appellant preferred the present appeal. 3. The brief facts, that led to filing of the present appeal, may be stated, as follows: The respondent is the owner of the Matador van bearing No. AAA-9151 and admittedly the said vehicle was insured with the appellant-Insurance Company under a comprehensive policy bearing No. 425110525 which fact is not in dispute. On 14.10.1986 the said vehicle met with an accident which resulted in the death of a passenger and injuries to two passengers. The vehicle was also extensively damaged. According to the respondent, he gave the vehicle to one of his friends on 14.04.1986 and on the same day at about 9.00 a.m. on account of the rash and negligent driving of the driver of the said vehicle, it turned turtle and thus, involved in the accident. He specifically pleaded that the vehicle was not used as commercial or transport vehicle and it was only given to his friend at his request. 4. Originally the vehicle was used as transport vehicle and was having a valid permit and fitness certificate for the said purpose. However, on 27.02.1996 the respondent transferred the permit to another vehicle bearing No. ADA-185 owned by him by paying an amount of Rs.10/- by way of challan in favour of the R.T.A. concerned. This according to him was done with a view to convert the vehicle bearing No. AAA- 9151, as a private vehicle. 5. After the accident, the respondent put-forth a claim for compensation relating to damage caused to the vehicle before the insurance company. The same was registered by the insurance company as claim No.2510/04/86/005. The insurance company repudiated the claim on the ground that it did not have valid permit and fitness certificate on the date of the accident. Thereafter, the respondent addressed a letter dated 25.10.1986 requesting the insurance company to review its decision and to re-consider the claim put-forth by the respondent. However, the Assistant General Manager (Grievance Cell) of the Insurance Company informed by his letter dated 25.08.1987 stating that the decision of the company in this matter, cannot be reconsidered. Thereafter, the respondent instituted the suit before the trial Court for recovery of an amount of Rs.1,17,180/- being the damages caused to the vehicle in the accident. 6. Basing on the rival contentions, the learned trial Court settled the following issues: 1) Whether the defendant unjustly repudiated the claim of the plaintiff for own damage? 2) Whether the plaintiff is entitled to compensation from the defendant for the damage caused to his vehicle? 7. In support of their respective contentions, the respondent examined himself as PW-1 and marked Exs.A-1 to A-17. Whereas, the appellant-insurance company examined DWs.1 to 4 and marked Ex.B-1 to B-7. 8. On a consideration of the entire oral and documentary evidence on record, the learned trial Court decreed the suit filed by the respondent, against which, the appellant is before this Court by filing the present appeal. 9. I have heard the learned counsel appearing for the appellant and the respondent. 10. The fact that the matador van bearing No. AAA-9151 which was involved in the accident was having a valid permit and fitness certificate and the same was transferred to another vehicle bearing No. ADA-185 had been spoken to by PW-1 before the Court below and it had been substantiated by Ex.A-3-original challan in favour of the R.T.A. concerned and also the certificate of substitution Ex.A-4 dated 28.02.1986 issued by the R.T.A. However, the said fact is not disputed by the appellant. It was the specific contention of the insurance company that the vehicle involved in the accident at relevant point of time was carrying passengers for hire or reward and therefore, the said vehicle not possessing valid permit and fitness certificate amounts to violation of conditions and terms of the policy and on that score, it was justified in repudiating the claim by the respondent. 11. On the other hand, it was the contention of the respondent that he gave the vehicle to one Ramanujulu Reddy who was his friend, but it was not plied for hire or reward and therefore, as per the provisions of the Motor Vehicles Act (Old) no permit or fitness certificate are necessary for the said vehicle involved in the accident since after the transfer of the permit, it became a private vehicle. 12. In the appeal the respondent filed a petition in A.S.M.P.No.128 of 2009 under Order 41, Rule 27 r/w 151 of C.P.C. to receive the copy of the judgment in C.M.A.No.734 of 1991 and cross-objections as additional evidence which is allowed with the consent of the appellant’s counsel and the document is marked as Ex.A-18. 13. According to sub-section 33 of Section 2 of the Motor Vehicles Act, 1988 “private service vehicle” means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes. This provision corresponds to Section 2(22) of the Old Motor Vehicles Act, 1939. Sub-section 35 which corresponds to sub-section 25 of the Old Act defines “public service vehicle” means motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi-cab, a motor-cab, contract carriage, and stage carriage. Section 56 of the Motor Vehicles Act, 1988 speaks about the requirements of certificate of fitness in respect of a valid registration of a transport vehicle. However, DW-2, a Senior Assistant in the R.T.A., Anantapur admitted in the cross-examination that the endorsement in policy marked as Ex.A-16 was issued by their office on 28.02.1986 and after 28.02.1996, the vehicle bearing No. AAA-9151 was revised by vehicle bearing No. ADA-185. The vehicle bearing No. ADA-185 had a valid permit on 28.02.1986 and originally the said vehicle was bearing No. AAA-9151. According to him, a certificate of fitness and permit are only required for a commercial vehicle and they are not necessary in case of a private vehicle. He also stated that after 28.02.1986, the vehicle bearing No. AAA-9151 became an idle vehicle and therefore, no permit or fitness certificate for the said vehicle are required. DW-4 who is a Licensing Surveyor of the Insurance Company admitted in his evidence that the vehicle bearing No. AAA-9151 was released from the permit on 28.02.1986 and on the same day, it was substituted by the vehicle bearing No. ADA-185. He also stated that for a private vehicle no fitness certificate is necessary. Therefore, even from the evidence of the witnesses of the appellant, a private vehicle does not require a permit or fitness certificate, which is needed for a commercial vehicle. In any event, the factum remains that when the passengers are carried, for hire or reward in a private vehicle, it certainly amounts to the violation of the stipulation of the policy whereby the insurance company can be excluded from the liability to pay compensation in respect of the damage caused to the vehicle. 14. In the instant case, the appellant insurance company did not adduce any evidence to prove that the vehicle involved in the accident, namely AAA-9151 met with accident at the time when it carried the passengers for hire or reward. On the other hand, the respondent who was examined as RW-1 asserted in his pleadings as well as in his evidence that he gave the vehicle only to one of his friends on his request. 15. The respondent in the present case preferred CMA No.734 of 1991 against the order passed by the Motor Accidents Claims Tribunal, Anantapur in O.P.No.14 of 1986. The said award was passed in the claim petition filed by the legal representatives of the deceased who was one of the inmates of the vehicle bearing No. AAA-9151, which was involved in the accident. Though it was a claim preferred by third parties, the finding that the insurance company is not liable, was challenged by the respondent herein before the learned single Judge of this Court and ultimately the learned single Judge set aside the finding of the Tribunal below and held that the insurance company which is the 4th respondent in the appeal before him is also jointly and severally liable to pay the compensation to the claimants along with the respondent/owner in the present case. The learned counsel appearing for the appellant insurance company brought to the notice of this Court an observation made by the learned single Judge in CMA No.734 of 1991 which is to the effect that the deceased was admittedly traveling in the van No. AAA-9151 as passenger for hire and he died in the said incident while traveling as such. However, this observation does not appear to have been made basing on the pleadings of the parties and it is not open for the insurance company relying on a stray sentence in the judgment of the learned single Judge to contend that the passengers in the vehicle involved in the accident at relevant point of time were actually traveling as passengers for hire. In the instant case, no such evidence was let in by the insurance company and the respondent was also not cross-examined touching the said aspect. Therefore, the said observation made by the learned single Judge has no binding efficacy and thus, the insurance company cannot take advantage of the said observation. The fact therefore, remains that the insurance company failed to establish that the inmates of the vehicle involved in the accident at relevant time were in fact the passengers for hire or reward. Eventually, the insurance company cannot avoid its liability to pay compensation on the pretext that the vehicle involved in the accident viz. AAA-9151 which is a private vehicle had no valid permit and fitness certificate on the date of the accident. 16. The appeal filed by the insurance company therefore, fails and accordingly, the same is dismissed without any order as to costs. _______________ R. KANTHA RAO, J Date: 09.02.2010 CCM THE HON’BLE MR JUSTICE R. KANTHA RAO A.S.No.1090 of 1992 Date: 09.02.2010