Deepak Gupta, J.@mdashThese appeals are being disposed off by one judgment since all the appeals arise out of similar awards passed by the learned Motor Accident Claims Tribunal, Kinnaur Division at Rampur Bushehar in Claim Petitions arising out of the same accident.
2. The brief facts of the case are that a Maxi Cab No. HP-02-8971 was going from Tapri towards Chagaon. The same was being driven by Sunder Bhagat who alongwith his brother were the owners of the Maxi Cab. The Maxi Cab went off the road and fell down into a deep gorge. There were a large number of persons travelling in the Maxi Cab, some of whom suffered injuries and some died. Claim petitions were filed by the injured and the legal representatives of the deceased. The Insurance Company contested the claim petitions on various grounds but the two main defences raised by the Insurance Company were that the vehicle was being driven in violation of the terms of the permit inasmuch as the vehicle was a contract carriage but was being used as a stage carriage. It is contended that this violation was a fundamental breach of the permit and hence the Insurance Company could not have been held liable. The other ground urged was that the vehicle was over-loaded and therefore there was a breach of the policy and Insurance Company could not have been held liable.
3. The learned Tribunal allowed all the claim petitions, rejected the contentions of the Insurance Company and held it liable to pay the compensation. The Insurance Company has filed these appeals challenging the awards.
4. I have heard Shri Ashwani Sharma, Learned Counsel for the Insurance Company, Sh. Dibender Ghosh, Learned Counsel for owners of the vehicle and Ms. Rita Goswami and Sh.R.R. Rahi, Learned Counsel for the claimants.
5. The main contention of Sh. Ashwani Sharma is that the vehicle in question was a Maxi Cab and was granted route permit for contract carriage but it was being used as a stage carriage and in view of this breach of the terms of the policy the Insurance Company cannot be held liable. In support of his contention Sh. Ashwani Sharma has drawn my attention to the judgment of the Apex Court in
29. We may consider the matter from another angle. Section 149(2) of the 1988 Act enables the insurers to raise defences against the claim of the claimants. In terms of Clause (c) of Sub-section (2) of Section 149 of the Act one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singh''s case
6. Thereafter, in
12. The High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed on a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of the insurer. The High Court was, therefore, not justified in holding the insurer liable.
7. A contract carriage has been defined in Section 2(7) of the Motor Vehicless Act as follows:
2(7) "contract carriage" means a Motor Vehicles which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum-(a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes-
(i) a maxicab; and
(ii) a motorcar notwithstanding the separate fares are charged for its passengers;
8. A stage carriage has been defined u/s 2(40) of the Act, as follows:
(40) "stage carriage" means a Motor Vehicles constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey.or for stages of the journey;
9. Section 149(2)(a)(i)(c) of the Act is relevant for our purpose which reads as follows:-
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) for under the provisions of Section 163-A 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 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) xxx
(b) xxx
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or....
10. Relying upon the aforesaid provisions and judgments of the Apex Court it is contended that the learned Tribunal gravely erred in holding the Insurance Company liable to pay the compensation.
11. There can be no doubt that the vehicle in question was registered and granted permit as a contract carriage. This fact has not been denied by the owner himself. The main difference between a contract carriage and a stage carriage is that in a contract carriage the vehicle must be hired by a person either on the basis of time or from one point to another but in a contract carriage the vehicle cannot be stopped time and again to pick up or set down the passengers. It basically means that one or more persons should have hired the vehicle and it is not to be used like a bus where any person can board the bus, pay the fare and travel up to his destination. It is settled law that when the Insurance Company sets up any defence, it must prove its defence and unless it proves its defence in accordance with law, it cannot be exonerated of its liability.
12. Sh. Ashwani Sharma has drawn my attention to the statements of the witnesses who have stated that they paid some fare for travelling in the Maxi Cab. He has also drawn my attention to the statement of one of the witnesses who has stated that on previous occasions this Maxi Cab was being used like a stage carriage. It is not the previous occasions which have to be looked into but the user at the time of the accident which is relevant for our purpose. All the witnesses have stated that the vehicle in question was hired by one Ram Sukh who had to carry stationery. As per the evidence on record Ram Sukh Dass had hired the vehicle. No doubt there is evidence on record to show that the other persons who travelled in the vehicle paid money to travel in the same but the evidence of all the witnesses is that this money was paid to Ram Sukh who had hired the vehicle and not to the owner or driver of the vehicle. If a owner hires out his vehicle to another person and that person in turn charges fare from other persons travelling in the vehicle it cannot, in my view, be said that the owner is guilty of breaching the terms of the policy.
13. On the basis of the evidence on record, I am of the considered view that the Insurance Company has miserably failed to show that there was violation of the terms of the route permit. The evidence on record in fact shows that the vehicle was being used as a contract carriage and not as a stage carriage. Therefore, it is not necessary to decide the other question which arises i.e. whether such breach of the permit is such a fundamental breach so as to exonerate the Insurance Company. That question is left open.
14. The next contention of Shri Ashwani Sharma is that the vehicle was overloaded and therefore, the Insurance Company was not liable. I have gone through the registration certificate of the vehicle which shows that it was meant to carry 12 passengers in addition to the driver i.e. 13 persons in. all. Only 13 petitions have been filed and it cannot be said that the overloading led to the accident.
15. As far as quantum is concerned, after perusing all the awards, I find that the awards are just and reasonable calling for no interference.
16. All the aforesaid appeals are accordingly dismissed. No order as to costs.
