The insurer is liable to indemnify compensation even if ownership transfer is unrecorded; the burden of proving permit violation lies with the insurer.

JUDGMENT :

SANDEEP JAIN, J.

1. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the insurer of the offending Tempo No.UP-70-AT-0110, against the impugned judgment and award dated 31.01.2014 passed by the Motor Accident Claims Tribunal/Special Judge (E.C. Act) / Additional District Judge, Fatehpur, in Motor Accident Claim Petition No. 170 of 2011 (Smt. Kusma Devi & others Vs. Irshad Ahmed & others), whereby, for the untimely death of Chhotey Lal Sharma (deceased) in a road accident that occurred on 18.02.2011, a compensation of Rs.2,71,000/- along with interest at the rate of 6% per annum has been awarded to the claimants (wife and children), which has been ordered to be indemnified by the insurer of the offending Tempo No.UP-70-AT-0110.

2. Learned counsel for the appellant-insurance company submitted that on the date of the accident, the offending Vikram tempo No. UP-70-AT-0110 was being driven in violation of the terms and conditions of the insurance policy without a valid permit, as such, the insurance company was not liable to indemnify the claimants, the compensation awarded to them by the tribunal. It was further submitted that the insurance policy was not issued in the name of the owner of the tempo/insured Irshad Ahmed, as such, on this ground also the insurance company was not liable to indemnify the claimants.

3. Per contra, learned counsel for the claimants-respondent submitted that the burden to prove that the offending vehicle was being plied without permit lies upon the insurer of the offending vehicle. It was further submitted that there was no evidence on record to prove that the offending vehicle was carrying passenger for hire and reward on the date of accident as such, there was no requirement of permit. It was further submitted that under Section 157 of the Motor Vehicles Act, 1988, even if the policy has not been assigned in favour of the insured Irshad Ahmed, even then the third party is liable to claim compensation from the insurer of the offending vehicle.

4. I have heard the learned counsel for both the sides, perused the impugned judgment and the record of the lower court.

5. From the perusal of the record of the lower court, it is evident that the owner Irshad Ahmed and driver Nisar Ahmed contested the claim petition and filed their joint written statement before the tribunal in which they denied the accident and submitted that at the time of the alleged accident the offending vehicle was under repair at a mechanic shop, which was fraudulently involved in the accident. It was further submitted by them that the offending vehicle was having all the valid documents and was also insured with the Oriental Insurance Company limited from 12.11.2010 to 11.11.2011, whereas the alleged accident occurred on 18.02.2011. It was further submitted that the driver was also having a valid and effective driving license on the date of the accident.

6. The owner of the offending vehicle Irshad Ahmed has filed the photocopy of the registration certificate (R.C.) of offending vehicle UP70-AT-0110 which discloses that it was a three wheeler(passenger) Auto Rickshaw having unladen weight of 550 KG which was having a seating capacity of seven (including driver) whose fitness was valid upto 20.07.2011. It is also apparent that the owner has filed the certificate of fitness of the above vehicle which discloses that it was a transport vehicle. The owner has also filed the photocopy of the insurance policy issued by the Oriental Insurance Company which discloses that the vehicle was insured from 12.11.2010 to 11.11.2011 under the 'Liability only Policy' for carrying six passengers. The insurance po