Liability of the insurance company in a motor accident case and the inapplicability of permit condition violation as a defense under Section 149(2) of the Motor Vehicles Act

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award dated 13.07.2012 made in M.C.O.P.No.259 of 2008 on the file of the Motor Accident Clams Tribunal, Sub Court, Valliyoor.)

1. The Insurance Company is challenging the award of the Motor Accident Claims Tribunal, Valliyoor in MCOP.No.259 of 2008 primarily on the ground of liability.

2. According to the injured claimant he was travelling as a pillion rider in a motor bike which was driven by the owner cum driver namely Rajesh. On 30.10.2008 at about 6.30 p.m, a mini bus belonging to the first respondent and insured with the second respondent had dashed against the rear side of the motor bike in which the claimant had sustained grievous injury. Hence, he had prayed for a sum of Rs.5,00,000/- towards compensation.

3. The first respondent namely the owner of the mini bus had filed a counter contending that only the rider of the motor bike drove the said vehicle in a rash and negligent manner and hit against the rear side of the mini bus. Therefore, the driver of the motor bike should have been impleaded as a party. The vehicle being insured with the second respondent, the second respondent alone is liable to pay compensation.

4. The second respondent insurance company had filed a counter contending that the driver of the mini bus was not driving the vehicle in a rash and negligent manner and the accident has happened only due to the rash and negligent driving of the motor bike when he attempted to over take the mini bus on the right side. The insurance company had further contended that the mini bus has got permit to operate only between Vadasery and Sun Polytechnic. However, at the time of accident, the vehicle was operating near Olikinacheri. Therefore, for violation of permit condition, the insurance company is not liable to pay any compensation.

5. The Tribunal after considering the oral and documentary evidence arrived at a finding that the accident has taken place only due to the rash and negligent driving of the mini bus owned by the first respondent. The Tribunal further found that the violation of permit condition is not a defence available to the insurance company under Section 149(2) of Motor Vehicles Act and therefore, the insurance company cannot be absolved from its liability as far as the third parties are concerned. The Tribunal further found that categorical stand has been taken by the driver of the mini bus who was examined as RW2 that there were no passengers in the mini bus at the time of accident and the bus was taken only for inspection.

6. In view of the above said findings, the Tribunal arrived at a conclusion that the route permit violation is not a defence and the insurance company is liable to pay compensation. The first respondent namely the owner of the mini bus was exonerated and the liability was fixed upon the insurance company.

7. Partial permanent disability of the injured claimant was fixed at 35% based upon Exhibit P8 -certificate and a sum of Rs.35,000/- was awarded towards permanent disability and including the compensation under the conventional heads, a total compensation of Rs.1,28,950/- was awarded by the Tribunal. This award of the Tribunal is under challenge in the present appeal.

8. The learned counsel for the appellant/insurance company had contended that as per Exhibit R1-permit, the vehicle can operate only between Vadasery and Sun Polytechnic. At the time of the accident, the vehicle was plying near Olikinacheri and therefore, there is a clear permit violation and the Tribunal has erroneously exonerated the owner of the mini bus. He had further contended that the accident has taken place only due to the rash and negligent driving of the driver of the motor bike and erroneously liability has been fixed upon the driver of the mini bus. He had further questioned the quantum of compensation awarded to the injured claimant contending that it is highly excessive.

9. Though notices w