DURUGAMMA YALLAMMA Vs. S.G. NARESH AND OTHERS

JUDGEMENT

(1.) The judgment and award passed by the Motor Accident Claims Tribunal at Hiriyur ('the Tribunal' for short) in MVC No.78/2009, is assailed by the claimant in this appeal, whereby, the Tribunal awarded total compensation of Rs.69,100.00 with interest, considering the claim of the injured - claimant, alleging actionable negligence of the driver of the Auto Rickshaw bearing Registration No.KA-16/A-5286 (offending vehicle), as the cause for the road traffic accident which occurred on 03.08.2008 while the claimant was proceeding with her father on Maradihally to Gollarahatty road, as a pedestrian. The insurer was absolved from the liability since the offending vehicle was plying outside the permitted limits of Chitradurga town violating the permit conditions, as such the liability was fastened on the registered owner of the offending vehicle.

(2.) Learned Counsel Sri. Harish N.R., appearing for the appellant would contend that the claimant was a minor represented through natural guardian - mother, instituted the claim petition seeking compensation for the bodily injuries sustained in the road traffic accident which occurred on 03.08.2008 owing to the negligence of the driver of the offending vehicle duly insured with the insurer-Respondent No.3 herein. However, the Tribunal grossly erred in exonerating the insurer and saddling the liability on the registered owner of the offending vehicle - respondent No.2 herein. The learned Counsel submits that no statutory defence is available to the insurer under Sec. 149 (2) of the Motor Vehicles Act, 1988 ('the Act' for short) in much as deviation of route permit. He would contend that deviation in route permit would amount to violation of terms and conditions of the insurance policy but would not exonerate the liability of the insurer to indemnify the insured. It is vehemently contended that the vehicle was being used for sanctioned purpose and if any condition was violated, that would be the breach of conditions of permit amenable to punitive action but cannot be said to be used for the purpose for which it was not authorised by the permit. The learned Counsel distinguishing the judgment of Honourable Apex Court in the case of National Insurance Co. Ltd. Vs. Challa Bharathamma and others reported in 2004 AIR SCW 5301 would contend that Honourable Apex Court rendered said Judgment in the context of vehicle plying on the road without a valid permit which cannot be applied to the vehicle with permit. Thus, it is contended that merely because the accident took place outside the limits as mentioned in the permit that itself would not amount to violation of insurance policy. In support of his contention, the learned Counsel placed reliance on the following judgments :

(3.) Per contra, Sri. O. Mahesh, learned Counsel appearing for the insurer placing reliance on Sec. 66 of the Act would contend that, Necessity for permits contemplates that, no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place, the use of the vehicle in that place in the manner in which the vehicle is being used. The learned Counsel submits that Sec. 149(2)(a)(i)(c) of the Act is the statutory defence available to the insurer. Admittedly, the vehicle in question had the permit to ply within the town limits of Chitradurga town and at the time of the accident, it was plying within Aimangala Hobli, Hiriyur Taluk, outside the town limits of Chitradurga town, which was in violation of Sec. 66 of the Act. It is not only violation of Sec. 66 of the Act, but violation of the terms and conditions of the insurance policy. In support of his contentions, the learned Counsel placed reliance on the following judgments :