The insurance company's entitlement to take objections under Section 149(2) of the Motor Vehicles Act and the burden of proof regarding permit validity.

AMIT RAWAL J.

1. The present appeal has been referred by the owner whereby the compensation to the tune of Ra. 14,35,260/- along with interest @6% per annum from the date of filing of the claim petition has been awarded to the claimants on account of death of deceased-Surender Kumar, who unfortunately died in a motor vehicular accident involving the bus bearing registration No.HR-39-7192.

2. Mr. Nirban, learned counsel appearing on behalf of the appellant submits that despite the fact that there was a subsisting legal and valid insurance policy at the time of the accident, which had taken place on 23.10.2009, liability has been fastened upon the owner on the premise that it did not have a valid route permit as envisaged under Section 66 of the Motor Vehicles Act. He submitted that the insurance company can take up the defences as available under sub-section 2 of Section 149 of the Motor Vehicles Act and not beyond that, thus, there cannot be an objection viz-aviz the non-compliance of provisions of Section 66 of the Motor Vehicles Act. The permit had already been produced on record, though according to the insurance company it was not legible but no steps have been taken by the insurance company to summon the witness from the Registering Authority where the vehicle was registered to ascertain this fact, therefore, in the absence of discharge of burden of proof, the liability cannot be fastened upon the owner. In support of his contention, he relied upon para 4 of the ratio decidendi culled out by Hon'ble Supreme Court in Kamala Mangalal and others Vs. United India Insurance Co. Ltd. and others 2010 ACJ 1441. He also relied upon judgment of Division Bench of this Court in National Insurance Company Limited Vs. Kamlesh Kaur and others 2006(3) RCR (Civil) 634.

3. Per contra, learned counsel appearing on behalf of the insurance company submits that the condition envisaged under sub-clause (c) of clause (a) of sub-section 2 of Section 149 permits the insurance company to take up the plea of non indemnification. In support of his contention, he relied upon the judgment of Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Chella Bharathamma 2004(8) SCC 517 and also judgment rendered by Coordinate Bench of this Court in Partap Singh Vs. National Insurance Company and others 2014(3) PLR 799 to contend that the finding rendered by the Tribunal cannot be faulted with. There is no illegality and perversity, much less, fallacy in the finding rendered by the Tribunal in fastening the liability upon the driver and owner of the bus, thus, urges this Court for upholding the award passed by the Tribunal. Learned counsel appearing on behalf of the claimants submits that owing to dispute between the insurance company and the owner, the amount of compensation has not been disbursed to the claimants except a sum of Rs. 4 lacs.

4. I have heard learned counsel for the parties and appraised the paper book. In order to appreciate the controversy raised on behalf of the respective counsel, it would be apt to reproduce provisions of Section 149 (2) as well as Section 66 of the Motor Vehicles Act:-

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

(1) xxx xxx xxx xxx

(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 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)