Rameshwar Dass vs Suresh Kumar And Ors on 4 March, 2025

Punjab-Haryana High Court

Rameshwar Dass vs Suresh Kumar And Ors on 4 March, 2025

Author: Sudeepti Sharma

Bench: Sudeepti Sharma

                                        Neutral Citation No:=2025:PHHC:033117




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FAO-5515-2006 (O&M)

208          IN THE HIGH COURT OF PUNJAB & HARYANA
                          AT CHANDIGARH

                                        FAO-5515-2006 (O&M)
                                        Date of Decision: -04.03.2025

RAMESHWAR DASS                                              ......Appellant

                                 Vs.

SURESH KUMAR AND ORS.                                       ......Respondent(s)

CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present:     Mr. Rakesh Bakshi, Advocate for the appellant.

             Mr. Akhil Saini, Advocate and
             Mr. Pradeep Goyal, Advocate for respondent No.2.

             ****

SUDEEPTI SHARMA J.

1. The instant appeal has been preferred by Rameshwar Dass owner of

the offending vehicle for setting aside the award dated 01.06.2006 passed by the

learned Motor Accident Claims Tribunal, Yamunanagar (for short, ‘the Tribunal’),

whereby, the claimants were awarded compensation and recovery rights were

granted to the Insurance Company after indemnifying the claimant.

FACTS NOT IN DISPUTE

2. Brief facts of the case are that on the intervening night of July 1 and 2

of 2002 claimant-Suresh Kumar was on his way from village Dhanaura to a place

called Kotputli in the State of Rajasthan in a truck bearing No.HR-37-6194 with

consignment of mango fruits. Man Singh was driving the said truck in a rash and

negligent manner which unfortunately turned turtle and occupants of the truck

sustained multiple injuries on their persons.

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SUBMISSION OF LEARNED COUNSEL FOR THE PARTIES.

3. Learned counsel for the appellant contends that the learned Tribunal

has wrongly held the owner of the offending vehicle liable to pay the

compensation. He further contends that despite the fact that the route permit was

issued to ply the offending vehicle in the State of Punjab and Haryana and the

accident took place in the State of Rajasthan, respondent No.-3 Insurance Company

was liable to indemnify the loss caused by the offending vehicle. Therefore, he

prays that the present appeal be allowed and the appellant-owner be absolved from

the liability imposed upon him.

4. Per contra, learned counsel for the Insurance company submits that the

award has rightly been passed. Therefore, he prays for dismissal of the appeal.

5. Before proceeding further, it is necessary to reproduce the relevant

portion of the award of the Tribunal:-

“12. Respondent Man Singh (RW2) has testified that he
had not gone to the State of Rajasthan with the consignment of
mango fruit and the truck had not met with accident. He does
not know claimant Suresh Kumar at all. However he admitted
that he is employed to drive truck bearing registration No.HR-
37-6194. He does not know claimant Suresh Kumar. The truck
has the route permit to ply in the States of Punjab and Haryana
only.

13. Respondent Rameshwar Dass (RW3) is the
registered owner of the truck in question. He has testified that
he has the route permit to ply his truck within the States of
Punjab and Haryana only. He has admitted that he has often
used his truck to transport consignments of mango crop. He
does not know if his truck had transported mango crop on
30.6.2002 or that the consignment belonged to petitioner Suresh
Kumar amongst others. He also does not know if the vehicle had
met with accident and had turned on and the Behrod chowk.

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14. Shri Ashok Makkar (RW1) is Assistant
Administrative Officer, New India assurance Company Limited,
Yamunanagar. He has testified that the truck in question bearing
registration on HR-37-6194 was duly insured from 18.10.2001
to 17.10.2002 as a goods carrier. The owner of the truck did not
file any claim with the Insurance Company towards road side
accident damage.

15. It has been urged on behalf of the respondents that
there is enough evidence on record to believe that the truck in
question was not involved in the alleged mishap. It has been
further urged that the truck has the route permit to ply within
the States of Punjab and Haryana only. It could not be used as a
goods carrier to supply the consignment of Mango crop in the
State of Rajasthan. Moreover, the owner of the vehicle did not
file any insurance claim with the insurer and as such it may be
presumed that the vehicle had not suffered any damage on or
about July, 2, 2002.

16. There is no force in the contentions raised by
respondents. The learned counsel for the accident had allegedly
taken place at 4.00 a.m. on 2.7.2002 and the first information
report was lodged at 6.15 a.m. on that very day meaning thereby
that the first version was delivered to the police promptly by
complainant Vikas. It is very specifically recorded in the
document under reference (Ex. P48) that a consignment of
mango fruit was being transported from a place called Bilaspur
in district Yamunanagar (Haryana) to a place called Kotputli in
the State of bearing registration no. Rajasthan in truck HR-37-
6194 with respondent Man Singh on the steering wheel. The
driver of the vehicle was maintaining enormous speed. He could
not negotiate a few drums placed on road under repair and he
lost control of the truck which turned turtle. The accident was
allegedly the direct result of rash driving on the part of driver
Man Singh. Since the first information report was lodged most
promptly, it may be very safely presumed that correct version

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FAO-5515-2006 (O&M)

was rendered by the complainant to the police. The contents of
the first information report land the required corroboration to
deposition of petitioner Suresh Kumar (PW1). the It may also be
very safely presumed that insured did not file insurance claim in
respect of the damage because he had violated the terms of the
insurance policy by plying the vehicle in the State of Rajasthan
although the route permit permitted the journey within the
States of Punjab and Haryana only. Since the claim could not be
cleared, the insured, in his wisdom, did not file the claim. There
is no big deal about this issue.

17. Moreover the owner of the truck has not
specifically denied the use of his vehicle within the area of the
town of Behrod on that morning of July 2, 2002 and the
accident resulting into petitioner Suresh.

18. There is overwhelming evidence available on
record to prove that the accident was direct result of rash
driving on the part of respondent Man Singh who was on the
steering wheel of the truck bearing registration no. HR-37-6194
of the meaning of July 2, 2002. The Vehicle had turned turtle in
the area of Police Station Behrod (Rajasthan). Issue No.1 is
decided in favour of the petitioner accordingly.

ISSUE NO. 2 AND 3

19. The poser for consideration being identical both these
issues are taken up together and dealt with.

20. Petitioner Suresh Kumar (PW.1) has testified that
the he was treated at Civil hospital, Behrod thereafter he was
shifted to A.I.I.M.S. Delhi for more specialized treatment. He
was treated there as an indoor patient for three days. He was
then treated at Dr. S.K. Gupta’s hospital for 30 days as an
indoor patient. He has spent a sum of Rs. 3,00,000/-on his
treatment.

21. Sh. Rajat Garg (PW2) is the proprietor of Suvidha
Drugs, S.K. Hospital, Jagadhri has proved bills Ex. P1 to Ex.
P30 and Ex. P47.

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22. Dr. S. K. Gupta (PW3) has testified that petitioner
Suresh was admitted in his hospital on 3.7.2002 with injury on
the face and head. He had suffered fracture of mandible,
alveolar and fracture of maxilla bilateral. He had also suffered
the fracture of nasal bone. The depressed fractures were
corrected with surgical intervention on 18.7.2002. He was
discharged from the hospital on 26.7.2002 after hospitalization
of 23 days. The doctor had issued bill Ex. P31.

23. Ex. P46 is certificate issued by a board of three
doctors which had assessed the permanent disability as 30%
after examining petitioner Suresh Kumar on 22.2.2006.

24. Ex. P1 to Ex. P42 and Ex. P44 are the medical bills
to the tune of Rs. 23,194/- only. Since the injured was shifted
from a far off place of Behrod of his native home in district
Yamunanagar and he had spent more than three weeks time as
an indoor patient, this amount is rounded off to Rs. 30,000/- by
allowing the remaining amount towards the amount spent on
transport, special diet and attendants. Therefore, the petitioner
is awarded the sum of Rs. 30,000/- for the amount spent by him
on medicine and special care. He is awarded a sum of Rs.
50,000/- on account of the 30% disability suffered by him in the
mishap. The petitioner had suffered multiple fractures and it
may be very safely said that he must have taken the period of
one year to fully recuperate and report to work. He is thus
awarded a sum of Rs. 36,000/- towards the loss of earnings
during the period of recuperation of one year by allowing the
minimum daily wages of Rs. 100/- only as are available in the
State of Haryana. He is awarded a further sum of Rs. 5000/-
towards pain and sufferings. The petitioner, is consequently
awarded a sum of Rs. 1,21,000/- as compensation on account of
the injuries the mishap.

25. It has been urged by Sh. Karnesh Sharma,
Advocate, learned counsel for the respondent NO. 3 that the
insurance company cannot be held liable to indemnify the

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insured. since he had violated the terms of insurance policy by
plying the vehicle in violation of route permit. Statutory
defences are available to the insurer as are provided in section
149 (2) of the Motor Vehicle Act as has been observed by the
apex Court in National Insurance company Ltd. Vs. Chella
Bharathmma 2004(4) RCR (Civil) 399.

26. It has been testified in so many words respondent
Rameshwar Dayal (RW3), the registered owner of the truck in
question, that he had the route permit to ply the truck in the
States of Punjab occurrence & Haryana only but the mishap
had at the State of Thereafter the ratio of National Rajasthan.
Insurance Company Vs. Chella Bharathmma‘s case (supra)
shall apply to the facts of the instant case and the insurance
company is not liable to indemnity the insured.

27. It has been urged by Shri Karnesh Sharma,
Advocate, counsel for respondent no. 3 that Sh. Suresh Kumar
was a gratuitous passenger traveling in a goods vehicle and the
insurance company is not liable to pay compensation to him. He
has relied upon National Insurance Co. Ltd. Vs. Bommithi
Subbhayamma & Ors. (2005-3) Punjab Law Reporter 546 and
National Insurance Co. Ltd. Vs. Gulab Singh & Others 2005
ACJ 241 to strike home his view point. However, the ratio of the
reported case law shall not apply to the facts of the instant case
because petitioner Suresh Kumar was traveling consignment of
mango fruit. with his own He had paid to transport the
consignment from district Yamunanagar to a place called in the
State of Rajasthan and he cannot gratuitous passenger.

28. Issue No. 2 is, consequently, decided in favour of
the petitioner, who is entitled to receive Rs. 1,21,000/-held as
compensation from respondents No. 1 and 2. Since the vehicle
was fully insured on the day of the mishap, the New India
insurance Company respondent. No. 3 shall pay the
compensation amount to petitioner Suresh Kumar but THE
insurance company shall have the right to recover this amount

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from respondent No. 2 Rameshwar Dass, the registered owner
of the truck in question, under the terms of this very award.
(Issue No. 3 is decided in favour of respondent No. 3 since the
insured had violated the terms and conditions of the insurance
policy by plying the truck in such area for which the route
permit had not been obtained by the registered owner. The
insurer is not liable to indemnify the insured .”

6. The pivotal issue for consideration before this Court is to determine

who shall be liable to compensate the claimants when the offending vehicle did not

possess the requisite route permit to ply on the route in question.

7. This issue is no longer res integra, as it has already been settled by a

Division Bench of this Court in case in FAO No. 3726-2006 titled as UNITED

Division Bench held that even in cases where the offending vehicle lacks the

requisite permit to operate on a particular route, the Insurance Company remains

liable to indemnify the loss caused by the vehicle. The relevant portion of the

judgment is reproduced as under:

“In this insurer’s appeal, learned counsel submitted that
the offending vehicle being a truck (RJ-07-G-2333) did not have
the requisite route permit to ply the vehicle on the route in
question. Learned counsel placed heavy reliance on a judgment
of Hon’ble the Apex Court reported in 2004 ACJ 2094 (National
Insurance Company Limited versus Challa Bharathamma and
others).

We have carefully perused the judgment and we find that,
in the said case, there was no permit at all in terms of definition
of permit, as contained in Section 2(31) of the Motor Vehicles
Act, 1988 (for short the Act’). The said definition, on
reproduction, reads as under:-

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“2(31) “Permit” means a permit issued by a State or
Regional Transport Authority or an authority prescribed in this
behalf under this Act authorising the use of a motor vehicle as a
transport vehicle.”

We have also perused Section 149 of the Act which relates
to insurer’s liability and it is reproduced as under-

“149. Duty of insurers to satisfy judgments and awards
against persons insured in respect of third party risks.-

(1) If, after a certificate of insurance has been issued
under sub-section (3) of Section 147 in favour of the person by
whom a policy has been effected, judgment or award in respect
of any such liability as is required to be covered by a policy
under clause (b) of sub-section (1) of Section 147 (being a
liability covered by the terms of the policy) (or under the
provisions of Section 163A) is obtained against any person
insured by the policy, then, notwithstanding that the insurer may
be entitled to avoid or cancel or may have avoided or cancelled
the policy, the insurer shall, subject to the provisions of this
section, pay to the person entitled to the benefit of the decree
any sum not exceeding the sum assured payable thereunder, as if
he were the judgment debtor, in respect of the liability, together
with any amount payable in respect of costs and any sum
payable in respect of interest on that sum by virtue of any
enactment relating to interest on judgments.

(2) No sum shall be payable by an insurer under sub-

section (1) in respect of any judgment or award unless, before
the commencement of the proceedings in which the judgment or
award is given the insurer had noticed 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 –

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(a) that there has been a breach of a specified condition of the
policy, being one of the following conditions, namely:-

(1) 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 organised 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 duly licensed, 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.

(3) Where any such judgment as is referred to in sub-

section (i) is obtained from a Court in a reciprocating country
and in the case of a foreign judgment is, by virtue of the
provisions of Section 13 of the Code of Civil Procedure, 1908 (5
of 1908) conclusive as to any matter adjudicated upon by it, the
insurer (being an insurer registered under the Insurance Act,
1938 (4 of 1938) and whether or not he is registered under the
corresponding law of the reciprocating country) shall be liable
to the person entitled to the benefit of the decree in the manner
and to the extent specified in sub-section (1), as if the judgment
were given by a Court in India:

Provided that no sum shall be payable by the insurer in
respect of any such judgment unless, before the commencement
of the proceedings in which the judgment is given, the insurer

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had notice through the Court concerned of the bringing of the
proceedings and the insurer to whom notice is so given is
entitled under the corresponding law of the reciprocating
country, to be made a party to the proceedings and to defend the
action on grounds similar to those specified in sub-section (2).

(4) Where a certificate of insurance has been issued
under sub-section (3) of section 147 to the person by whom a
policy has been effected, so much of the policy as purports to
restrict the insurance of the persons insured thereby by
reference to any condition other than those in clause (b) of sub-
section (2) shall, as respects such liabilities as are required to
be covered by a policy under clause (b) of sub-section (1) of
section 147, be of no effect:

Provided that any sum paid by the insurer in or towards
the discharge of any liability of any person which is covered by
the policy by virtue only of this sub-section shall be recoverable
by the insurer from that person.

(5) If the amount which an insurer becomes liable under
this section to pay in respect of a liability incurred by a person
insured by a policy exceeds the amount for which the insurer
would apart from the provisions of this section be liable under
the policy in respect of that liability, the insurer shall be entitled
to recover the excess from that person.

(6) In this section the expression “material fact” and
“material particular” means, respectively a fact or particular of
such a nature as to influence the judgment of a prudent insurer
in determining whether he will take the risk and, if so, at what
premium and on what conditions, and the expression “liability
covered by the terms of the policy” means a liability which is
covered by the policy or which would be so covered but for the
fact that the insurer is entitled to avoid or has avoided or
cancelled the policy (7) No insurer to whom the notice referred
to in sub-section (2) or sub-section (3) has been given shall be
entitled to avoid his liability to any person entitled to the benefit

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of any such judgment or award as is referred to in sub-section
(1) or in such judgment as is referred to in sub-section (3)
otherwise than in the manner provided for in sub-section (2) or
in the corresponding law of the reciprocating country, as the
case may be.

Explanation. For the purposes of this section, “Claims
Tribunal” means a Claims Tribunal constituted under section
165 and “award” means an award made by that Tribunal under
section 168.”

None of the provisions contained in both the above
Sections refers to route permit. Under the circumstances, we are
not inclined to accede to the submissions of learned counsel for
the appellant, and further, no such plea was ever taken in the
written statement before the Tribunal.

Accordingly, the FAO, being devoid of merits, is, hereby,
dismissed.”

8. Moreover, the legal position was reiterated by Co-ordinate Bench of

this Court in case titled as National Insurance Company Limited vs. Rajender

Giri & Ors., 2012 (2) RCR (Civil) 133, where the offending vehicle had been

granted a permit for operation within the State of Rajasthan, but the accident

occurred in the State of Haryana. The Court held Insurance Company liable to pay

the compensation awarded by learned Tribunal.

9. Further a perusal of the record reveals that the driver of the offending

vehicle was having a valid and effective licence at the time of accident. Moreover

the offending vehicle was fully insured on the day of the accident by the New India

Insurance Company.

10. In sequel of the settled legal position, this Court is of the unequivocal

opinion that the learned Tribunal fell into error by fastening the liability upon the

owner of the offending vehicle. The liability to indemnify the claimants squarely

rests with the Insurance Company.

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11. In light of the foregoing, the present appeal is allowed, and the

impugned award is modified to the extent that the recovery rights granted to the

Insurance Company to recover the compensation from appellant-registered owner

of the offending vehicle is hereby set aside.

12. The statutory amount of Rs.25,000/- deposited by the appellant as

required under Section 173(2) of the Motor Vehicles Act, 1988 be refunded to him

as per rules.

13. Further Insurance Company is directed to disburse the current

schedule fees to Mr. Pradeep Goyal, Advocate, within a period of twenty days from

the date of receipt of certified copy of this order, in view of order dated 18.07.2024

passed by this Court in FAO-1682-2007.

14. Pending applications, if any, also stand disposed of.

                                                  (SUDEEPTI SHARMA)
                                                       JUDGE

04.03.2025
mahima          Whether speaking/non-speaking : Speaking
                Whether reportable                : Yes




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