IMPORTANT POINT
The insurance company is liable to pay compensation to claimants if a valid permit exists at the time of the accident, negating any right to recover from the vehicle owner.

JUDGMENT :

Maulik J.Shelat, J.

1. Admit. Learned advocate Mr.Krupali N. Bhatt waives service of notice of admission on behalf of respondent no.5 and Mr. Ruja N. Desai learned advocate waives service of notie of admissions for respondent no.4. The presence of original claimants are not required for adjudication to the present appeal as the issue of liability touching between the appellant and respondent no.5 – Insurance Company.

2. The present appeal is filed by the original opponent no.2- owner of the Luxury Bus bearing registration no. GJ.14.X.9396 under Section 173 of the Motor Vehicle Act (herein after referred to as ‘the MV Act’) challenging judgment and award dated 21.10.2022 passed by the Motor Accident Claim Tribunal (Main) & Principal District Judge, Kachchh at Bhuj in Motor Accident Claim Petition No.270 of 2017.

3. The parties will be referred as their original position before the tribunal.

4. Short facts of the case appear to be as under;

4.1 On 17.07.2017, late Krunal Naisedhbhai Bhandari was travelling in Luxury bus No. GJ.14.X.9396 insured with original claimant no.3 – insurance company of the luxury bus no.GJ.14.X.9396, which met with an accident, wherein the said Krunal Naisedhbhai Bhandari sustained serious injuries and succumbed to it.

4.2 As the death of the deceased was due to rash and negligent driving on the part of the luxury bus involved in the accident, so the claimants have filed claim petition under Section 166 of the M.V. Act claiming compensation of Rs.2,00,00,000/- from driver, owner and insurance company of luxury bus.

4.3 The Opponent Nos.1 and 2 served with the notice but they have chosen not to contest the present petition.

4.4 The Opponent No.3 – insurance company appeared before the Tribunal and filed its written statement and contest the claim on all counts.

4.5 The Tribunal, after appreciating evidence on record, as there is no other vehicle involved with the accident, held that due to rash and negligent driving of the driver of luxury bus No. GJ.14.X.9396, the said Krunal Naisedhbhai Bhandari had sustained injuries and succumbed to it.

4.6 After appreciating the documentary and oral evidence on record, the Tribunal has awarded, in all, Rs.28,42,600/-. So far as liability to pay compensation by the opponents are concerned, opponent no.3 – insurance company has raised its defense that at the time of accident, there was no valid and effective permit of luxury bus and for the said reason, it has repudiated even own damage claim of luxury bus, which was produced at Exh.45.

4.7 Thus, in view of the aforesaid facts and the defense raised by the insurance company and taking into consideration ratio laid down by Hon’ble Supreme Court of India in the case of Amrit Paul Singh vs. Tata Aig General Insurance Co. Ltd., reported in AIR 2018 SC 2662, the Tribunal has exonerated the opponent no.3 – insurance company, albeit, directed it to first pay compensation then recover it from the driver and owner of the luxury bus no.GJ.14.X.9396. So, opponent No.2 has preferred the appeal, thereby challenged the impugned judgment and award.

5. Before adverting to the merits of the case, we would like to observe that appellant herein appears to have challenged the order dated 24.06.2024 passed by this Court before Hon’ble Supreme Court of India by way of the Special Leave to Appeal (Civil) No.16262 of 2024 wherein, vide its order dated 30.07.2024, Hon’ble Supreme Court of India has stayed the order passed by this Court. It further appears that Hon’ble Supreme Court of India in its aforesaid order, directed the present appellant to deposit 50% of the awarded amount and to further deposit ligation costs to the claimants, stayed the order passed by this Court.

6. After going through the order passed by Hon’ble Supreme Court of India dated 30.07.2024, it appears that proceedings of the present appeal is not stayed.

7. With the request made by the learned advocates for the respective parties, including the present appellant, who has c