Liability of the insurance company in motor accident claims and the requirement of permits for commercial vehicles under the Motor Vehicles Act.

Present appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred against the judgment and award dated 27.04.2009 passed by the Motor Accident Claims Tribunal, Lucknow in Motor Accident Claim Petition No. 243 of 2007 (Smt. Noor Fatima and others vs. Labir Singh Bisht and another), whereby a total compensation of Rs.12,73,560/- was awarded against the appellant insurance company along with interest @8% per annum.

2. The brief facts of the case are that on 11.11.2006 at about 2.00 am (morning), the deceased Syed Firoze Hasan was going on his scooter bearing No. UP 32/S-9238 from Mall Godam, Charbagh to Alambagh, a Mahendra Picup Van No. UP 32/A.N. 3674 was coming from the opposite direction, whose driver was driving it very rashly and negligently and hit the Scooter. Sri Syed Firoze Hasan fallen down. He was taken to the Trauma Centre, where he died after a few hours. The claimant-respondents have filed Claim Petition before the Tribunal and the Tribunal after examining the entire evidence awarded compensation of Rs.12,73,560/- against the appellant - insurance company. Being aggrieved, the instant appeal has been preferred by the appellant insurance company.

3. With this background, Sri U. P. S. Kushwaha, learned counsel for the appellant - insurance company submits that it was a "head on collusion" as the deceased was coming on the wrong side of the road. So, the liability will have to be fixed in the ratio of 50:50 but the Tribunal has wrongly fixed the entire liability on the appellant-insurance company. He also submits that the appellant-insurer was not liable to pay compensation as the offending vehicles i.e. Mahindra Pick-up was being driven without any permit at the time of accident. He also submits that the learned Tribunal has erred in holding that permit was not required for running Mahindra pick up as goods carriage under section 66 (i) of the Motor Vehicles Act as it Gross Vehicle Weight was less than 3000 kg. This finding is perverse. The RC shows that Unladen weight of Mahindra pick up was 1625 kg. and registered Laden Weight was 2750 kg. Thus, Gross Vehicle Weight was 4375 Kg. and permit was required for using the vehicle as goods carriage.

4. He also submits that the Tribunal has admitted the salary slip of the deceased, where the monthly pay of Rs.10,513/- was determined. But no original certificate was ever produced. Lastly, he submits that the penal interest awarded, is not desirable in the facts and circumstances of the case. On specific query from the Bench, he admits that the Mahindra Pickup Van was insured by his Insurance Company.

5. On the other hand, Sri Shakeel Ahmad Ansari, learned counsel for the claimants-respondent has justified the impugned order passed by the Tribunal. He submits that the pick-up Van was taken to the Police Station after the accident and it was shown as empty vehicle.

6. We have heard both the parties at length and gone through the material available on record.

7. From the record, it appears that the accident is undisputed and on the date of accident, the driver of the Mahindra Pickup Van Sri Virendra Bahadur was holding a valid driving license and the Pick-up Van was insured by the appellant-insurance company and on the date of accident, the Policy was alive. Necessary FIR was also lodged at P.S. Naka, Lucknow.

8. On the date of accident, the road on the left side was closed for repair work. So, the traffic was diverted on the right side. Hence, the scooter was going on the right side of road but on his left. So, it cannot be said that there was any negligency on the part of the scooter driver. In the peculiar facts and circumstances of the case, the Tribunal has rightly observed that it was not a case of contributory negligence and the driver of the Pick-up Van was solely responsible for the accident. The driver of the Pick-up Van was arrested on the spot and necessary criminal case was lodged at P.S. Naka, Lucknow.

9. Regarding the Commercia