Mukteshwar Prasad, J.
1. This is first appeal under Section 110D of the Motor Vehicles Act, 1939 (Old Act) by the owner of truck No. UPQ-1679 against the judgment and award dated 30.9.1988 passed by Sri S.K. Saxena the then Motor Accident Claims Tribunal, Gorakhpur whereby he allowed the claim petition for recovery of Rs. 23,200 only along with interest at the rate of 10% per annum from the owner of the offending vehicle.
2. In brief, the facts of the case giving rise to this appeal are as under :
3. A claim petition by Yogendra Kumar Srivastava an advocate of Gorakhpur was sent to the Motor Accident Claims Tribunal, Gorakhpur by registered post. It was alleged by the claimant that on 9.11.1985 at about 12.00 noon, he was going home on his Rajdoot Motorcycle bearing Registration No. CPJ-8798. He was himself driving the Motorcycle. A truck bearing Registration No. UPQ-1679 owned by opposite party No. 1 (C.K. Agarwal) was coming from the opposite direction and had a collision with the Motorcyclist in which the claimant received grievous injuries and his right leg and knee were fractured. The truck driver alongwith vehicle was apprehended on the spot. He therefore filed claim petition claiming compensation in respect of several heads including Rs. 4,000 for repairs of the Motorcycle in question.
4. The owner of the truck in question (appellant) filed written statement admitting that the claimant is an advocate and he is owner of the vehicle in question. The owner pleaded that accident in question was not caused on the impugned date by the truck in question and the vehicle and the driver were not apprehended on the spot as alleged in the petition. The owner took the plea that he had surrendered the vehicle to Transport Authorities at Gorakhpur and the vehicle was parked near Mohaddipur crossing for carrying out necessary repairs. The vehicle alongwith driver was taken to Sahjanawa police station forcibly by the police and a false case was set up against him. It was also pleaded that amount of compensation claimed in the petition is excessive and the claimant had no valid driving licence. The vehicle was insured with United India Insurance Company Limited and the insurance was valid from 9.10.1985 to 9.10.1986.
5. A written statement was filed on behalf of the Insurance Company totally denying that accident in question was caused by the truck in question and the truck was not being plied in accordance with the terms and conditions of the Insurance policy and as such, company is not liable to indemnify. It was further pleaded that route permit, registration certificate and fitness certificate and other relevant documents concerning vehicle were surrendered in the office of R.T.O., Gorakhpur. Hence, owner of the vehicle had no legal authority to ply the vehicle on road and there was violation of the conditions of policy and the company was not liable to pay compensation. Moreover, the claimant had no valid licence to drive the vehicle. It was also pleaded that truck driver was not having valid driving licence on the impugned date.
6. On the basis of the claim petition and written statements of the parties, necessary issues were framed in the case.
7. After having considered evidence on record led by the parties, learned Tribunal found that the claimant sustained grievous injuries on the impugned date and time as a result of collision of the truck No. UPQ 1679. Issues No. 2 and 5 were disposed of together and it was held that the truck in question was being plied without permit. The Tribunal found that claimant was having a valid licence for driving the Motorcycle. The Tribunal held that the claimant was entitled to recover Rs. 23,200 only as compensation from the owner of the truck from the date of filing of claim petition. Hence, this appeal.
8. I have heard Sri A.P. Tiwari, learned counsel for the owner appellant and Sri K.S. Amist, learned counsel for the Insurance Company and have perused the record carefully. None appeared on behalf of the claimant.
9. Learned counsel for the appellant has assailed the judgment under appeal mainly on the ground that accident in question was not caused by truck No. UPQ-1679 owned by the appellant and the accident was not the result of rash and negligent driving by the truck driver and the finding is perverse and is liable to be set aside. No independent eye-witness of the accident was examined by the claimant. It was also submitted on behalf of the appellant that truck was surrendered to the R.T.O., Gorakhpur on the impugned date and the vehicle was standing near Railway Stadium, Mohaddlpur and there was no violation of the terms and conditions of the policy and as such, the Insurance Company is liable to pay compensation. The Tribunal erred in fastening liability on the owner to pay compensation.
10. On the other hand learned counsel for the Insurance Company has urged that this appeal has no merits and is liable to be dismissed. The claimant proved by reliable evidence that accident in question was caused by the truck in question and the Tribunal committed no error in fixing liability on the owner of the truck as the truck had been surrendered by the owner to transport authorities and the vehicle was being plied on the road without any permit and fitness certificate etc.
11. Reliance has been placed on a decision of the Supreme Court of India in National Insurance Company Ltd. v. Chalta Bharathamma and Ors., 2004 (4) AWC 3369 (SC) : 2004 (57) ALR 284.
12. I have considered the submissions made on behalf of the parties and have perused the record also, including oral and documentary evidence led by the parties.
13. The claimant in support of his petition examined himself and Dr. G.P. Sinha. No oral evidence was led on behalf of the owner. It is true that no independent eye-witness was examined by the claimant. I, however, find that the claimant proved by reliable evidence that accident in question was caused by the truck in question. The claimant stated in unambiguous words that on 9.11.1985 at about 12.00 noon he was going home situate in village Gajpur on his Motorcycle No. CPJ-8798. The accident in question took place near village Nagwan. According to the claimant, a truck bearing registration No, UPQ 1679 was coming from the opposite direction at a speed of approximately 50 kilometeres per hour and collided with the Motorcycle. The claimant added that the truck along with driver was apprehended at a distance of about 100 metres from the place of accident. Claimant's knee was fractured and he remained hospitalized in District Hospital, Gorakhpur and Medical College, Gorakhpur for about one month and treatment continued for two years. The claimant was cross-examined by the learned counsel appearing for the parties and the claimant disclosed that he had read registration number of the truck and the truck driver was apprehended on the spot. It is, therefore, clear that offending vehicle was apprehended on the spot by the villagers and as such, there was no question of filing a false claim petition against the owner of the vehicle which caused the accident. In the instant case, no oral evidence was led on behalf of the owner of the truck. In my opinion, learned Tribunal rightly concluded that accident in question was caused by truck No. UPQ 1679 owned by the appellant. It is noteworthy that the accident in question was reported to local police also and the driver in question was charge-sheeted. Moreover, there is no evidence at all that the injured became unconscious on the spot after the accident and as such, he was unable to read the registration number of the vehicle.
14. Now the second question for determination is whether the appellant is liable to pay compensation to the claimant as ordered by the Tribunal or the liability lies on the Insurance Company to pay compensation.
15. Learned counsel for the appellant has urged with vehemence that truck No. UPQ-1679 was insured with opposite party No. 2 (United India Insurance Company Ltd.) and the insurance was valid from 9.10.1985 to 9.10.1986 and as such, the insurer is liable to pay the amount of compensation to the claimant. On the other hand, learned counsel appearing for the insurer has submitted that admittedly the owner of the vehicle in question had surrendered all papers to Transport authorities at Gorakhpur and the vehicle was under repairs near Railway Stadium, Mohaddipur, According to him, the owner of the truck had deposited the registration certificate, permit, certificate of fitness etc. with the local R.T.O. and without permit and fitness certificate the vehicle was being plied on the road which caused the accident and after the accident the driver alongwith vehicle was apprehended by the villagers. He has submitted that all the defences mentioned in Section 96 of the Old Act were available to the insurer and the vehicle was being plied on the road without permit and there was infraction of the terms and conditions of the policy. Learned counsel for the insurer has drawn my attention on a decision of the Supreme Court in National Insurance Co. Ltd. v Challa Bharathamma and Ors. (supra).
16. I have considered the arguments advanced on behalf of the parties on this point and find force in the contention of the learned counsel for the Insurance Company. The owner of the truck came to the Tribunal with clear allegations that the vehicle was being repaired at Gorakhpur on the date in question and all documents including permit, certificate of fitness, etc. had been surrendered in the office of the R.T.O. at Gorakhpur. It is, therefore, clear that the truck in question was being driven by the driver on the road in an unauthorized manner and against the terms and conditions of the policy and caused accident. Section 76 of the new Act (Section 42 of the old Act) clearly provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place except in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority. It means plying of a transport vehicle on the road without valid permit and certificate of fitness is prohibited under the law. It was clearly held by the Apex Court that a person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, In terms of Section 149(2) defence is available to the insurer on that aspect. It was also held that the question of policy being operative had no relevance for the issue regarding liability of insurer. Therefore, in view of the clear law laid down by the Apex Court recently in such matters, I am clearly of the opinion that the learned Tribunal committed no error of law in fastening liability to pay compensation on the owner of the vehicle. I find no good ground to interfere with the finding recorded by the Tribunal on this point and it is held that owner of the truck in question is liable to satisfy the claimant.
17. In view of my above finding, I hold that this appeal is devoid of merit and is liable to be dismissed.
18. No other point was pressed.
19. The appeal is, accordingly, dismissed. However, there shall be no order as to costs.