(1.) THESE appeals involve identical grounds of challenge and are, therefore, disposed of by this common judgment. New India Assurance Company Limited (hereinafter referred to as the 'insurer') calls in question legality of the awards made by the Second Motor Accidents Claims Tribunal, Northern Division, Sambalpur (in short, the 'Tribunal') granting compensation to respondent No. 1 in each case. Each of them is hereinafter described as 'claimant' for the sake of convenience.
(2.) THE background facts giving rise to the appeals sans unnecessary details are as follows: On 6.11.1985 a bus bearing registration No. OPJ 4483 met with an accident as a result of which several passengers including the claimant sustained injuries. Five of the injured persons claimed compensation by filing applications before the Tribunal under Section 110A of the Motor Vehicles Act, 1939 (in short, the 'Old Act'). The owner of the vehicle Narayan Chandra Sahoo (hereinafter referred to as the 'owner') filed written statement taking the stand that the driver of the vehicle was not negligent, but the accident occurred while he was trying to save a cyclist. The insurer in its written statement specifically pleaded that the vehicle in question was being plied without any valid route permit. The permit granted by the Regional Transport Officer did not authorise carrying of passengers, and only authorised plying of the vehicle upto Amareswar Garage at Jajpur Road for repairs. The owner of the vehicle contravened the specific direction of the R.T.O. and plied the vehicle for commercial purpose for hire and reward by carrying passengers. It was also pleaded that the vehicle Was declared off the road by the R.T.O. from 1.10.1985 to 31.12.1985, and the accident having occurred in between the aforesaid two dates, the insurer had no liability. The Tribunal on consideration of the claims observed that the liability was that of the insurer, and directed payment of awarded amount by the insurer.
(3.) IN order to appreciate the rival contentions, it is necessary to refer to Section 2(20) of the Old Act, corresponding to Section 2(31) of new Act, which defines 'permit' to mean a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under the Act authorising the use of a contract carriage or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle. Though wording of the new provision in the new Act is different, in substance, there is no material difference. A permit is a document issued by a Transport Authority authorising the use of a transport vehicle in a particular way. It is a document which enables an owner of a vehicle to ply it. The definition does not make any distinction between a permanent and a temporary permit. Section 96 of the Old Act, corresponding to Section 149 of the new Act, deals with duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. However, a protection is given to the insurer from such liability in case of breach of certain conditions. In order to avail that protection, the Insurance Company is required to show that there was a breach of a specified condition of the policy, and that particular condition related to a permit and the user of the vehicle for a purpose not allowed by the permit. Only when the Insurance Company satisfies the aforesaid ingredients, it can escape the liability. Ext. A/1 is a xerox copy of part of the policy. The original policy was not produced before the Tribunal. The learned Counsel for the insurer submitted that the insurer should be granted an opportunity to file the policy as additional evidence. Though acceptance of additional evidence is not impermissible, yet it would depend upon the circumstances in which the additional evidence is considered desirable to be accepted. It has to be shown as to what prevented the Insurance Company to adduce that evidence at the original stage. No satisfactory explanation has been refered in the case at hand.