Vehicle usage and insurance liability must consider the vehicle's operational status at the time of the accident, and lack of permit or license becomes irrelevant if the vehicle was not used for transport purposes.

JUDGMENT :

Satyen Vaidya, J.

1. By way of instant appeal, the appellant has assailed award dated 01.09.2012 passed by learned Motor Accident Claims Tribunal-II, Mandi, H.P. (for short “the Tribunal”) in Claim Petition No. 48 of 2006, whereby respondents No.1 to 6 have been awarded compensation to the tune of Rs.13,90,336/- along with interest @ 7.5% per annum from the date of filing of petition.

2. A claim petition under Section 166 of the MOTOR VEHICLES ACT was filed by respondents No.1 to 6 (hereinafter referred to as “claimants”) by impleading respondent No.7 in the capacity of owner and driver of offending vehicle (hereinafter referred to as “owner”) and the appellant herein as insurer (hereinafter referred to as “insurer”).

3. The claimants had claimed compensation on account of death of Shri Baldev Singh Thakur in a motor vehicle accident, being his dependents.

4. It was alleged that on 15.12.2005 at about 8.30 A.M. Sh. Baldev Singh Thakur while walking on the road at village Nerwa in District Shimla was hit by a vehicle with temporary registration number being driven by owner in rash and negligent manner. Shri Baldev Singh Thakur was alleged to have received fatal injuries in the accident. As per claimants, the matter was reported to the police, on the basis of which FIR No. 128/2005 dated 15.12.2005 was registered at Police Station Nerwa under Sections 279 , 337 and 304-A of the IPC.

5. The deceased was stated to be working as Junior Engineer (Mechanical) with HPPWD and his last drawn salary was claimed at Rs.19,964/-. The deceased was also stated to be getting ex-serviceman pension of Rs.2,769/- per month besides the honorarium of Rs.1500/- per month as awardee of “NAU SENA MEDAL”.

6. The owner contested the claim petition on the ground that he was not rash and negligent in driving the vehicle and the accident had taken place on account of negligence of the deceased himself. The vehicle was stated to be insured with the insurer at the time of accident. Rest of the averments made in the claim petition were denied generally.

7. The insurer also contested the claim petition by alleging violations of terms and conditions of insurance policy. It was alleged that the deceased had also contributed in the accident. As a specific objection, it was alleged that the driver of the vehicle was not holding a valid and legal driving license.

8. Learned Tribunal framed the following issues:-

1. Whether the deceased Baldev Singh died due to rash and negligent driving of vehicle No.. A/F of respondent No.1, as alleged? OPP.

2. If Issue No.1 is proved, whether the petitioners are entitled to compensation, if so to what amount and from whom?

3. Whether the deceased died due to contributory negligence on the part of the deceased, as alleged? OPR-1

4. Whether the vehicle in question was being driven in breach of terms and conditions of the insurance policy?OPR-2

5. Whether the driver of the vehicle was not holding valid and effective driving licence at the time of the accident? OPR-2.

6. Relief.

9. Issues No. 1 and 2 were decided in affirmative. Rest of the issues were decided in negative and the petition has been allowed in the terms as noticed above. The liability to pay compensation has been fastened on the insurer.

10. I have heard learned counsel for the parties and have also gone through the entire record carefully.

11. Dr. Lalit K. Sharma, Advocate, for the appellant/insurer has contended that the breach of terms and conditions of policy had duly been proved on record. He asserted that vehicle involved in the accident was a transport vehicle and at the time of accident the same was being plied without necessary permit. On such count the liability of insurer to indemnify the insured has been disputed. Learned counsel for insurer has placed reliance on the judgments passed by the Hon’ble Supreme Court in National Insurance Co. Ltd. vs. Challa Bharathamma and others , (2004)8 SCC 517 and Amrit Paul Singh and another vs. Tata AIG General Insurance Comp