National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment

Judgment:

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			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
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			'respondent' => 'Smt. Radha Bai and ors.',
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
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		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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N.P. Gupta, J.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
)
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$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'national-insurance-company-ltd-vs-smt-radha'
$args = array(
	(int) 0 => '750723',
	(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
)
$url = 'https://sooperkanoon.com/case/amp/750723/national-insurance-company-ltd-vs-smt-radha'
$ctype = ' High Court'
$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
)
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$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
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			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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	)
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'national-insurance-company-ltd-vs-smt-radha'
$args = array(
	(int) 0 => '750723',
	(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
)
$url = 'https://sooperkanoon.com/case/amp/750723/national-insurance-company-ltd-vs-smt-radha'
$ctype = ' High Court'
$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
)
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$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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			'circuit' => null
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	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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			'circuit' => null
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	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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			'circuit' => null
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	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(i) a condition excluding the use of the vehicle-

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(b) for organised racing and speed testing, or

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(d) without side-car being attached where the vehicle is a motor cycle; or

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'National Insurance Co. v. Challa Bharathamma<br>'
$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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			'circuit' => null
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	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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			'circuit' => null
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	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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'207. Power to detain vehicles used without certificate of registration permit, etc.-

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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			'circuit' => null
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	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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			'circuit' => null
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	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
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		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
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			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
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	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
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$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
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		'respondent' => 'Smt. Radha Bai and ors.',
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	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
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20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.

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	'title_for_layout' => 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750723',
			'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
			'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
			'appellant' => 'National Insurance Company Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
			'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
			'caseanalysis' => null,
			'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
			'citingcases' => '',
			'counselplain' => ' Jagdish Vyas, Adv.',
			'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2005-02-02',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.P. Gupta, J.',
			'judgement' => '<p style="text-align: justify;">N.P. Gupta, J.</p><p style="text-align: justify;">1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p style="text-align: justify;">2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p style="text-align: justify;">3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p style="text-align: justify;">4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p style="text-align: justify;">5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p style="text-align: justify;">6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p style="text-align: justify;">7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p style="text-align: justify;">8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p style="text-align: justify;">9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p style="text-align: justify;">10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p style="text-align: justify;">11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p style="text-align: justify;">'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p style="text-align: justify;">(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p style="text-align: justify;">(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p style="text-align: justify;">(i) a condition excluding the use of the vehicle-</p><p style="text-align: justify;">(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p style="text-align: justify;">(b) for organised racing and speed testing, or</p><p style="text-align: justify;">(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p style="text-align: justify;">(d) without side-car being attached where the vehicle is a motor cycle; or</p><p style="text-align: justify;">(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p style="text-align: justify;">(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p style="text-align: justify;">(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p style="text-align: justify;">(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p style="text-align: justify;">Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p style="text-align: justify;">Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p style="text-align: justify;">(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p style="text-align: justify;">(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p style="text-align: justify;">12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p style="text-align: justify;">'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p style="text-align: justify;">(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p style="text-align: justify;">Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p style="text-align: justify;">13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p style="text-align: justify;">14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p style="text-align: justify;">15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p style="text-align: justify;">16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p style="text-align: justify;">'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p style="text-align: justify;">17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p style="text-align: justify;">18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p style="text-align: justify;">19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p style="text-align: justify;">20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
			'ratiodecidendi' => '',
			'respondent' => 'Smt. Radha Bai and ors.',
			'sub' => 'Motor Vehicles;Insurance',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'national-insurance-company-ltd-vs-smt-radha',
	'args' => array(
		(int) 0 => '750723',
		(int) 1 => 'national-insurance-company-ltd-vs-smt-radha'
	)
)
$title_for_layout = 'National Insurance Company Ltd Vs Smt Radha Bai and ors - Citation 750723 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750723',
		'acts' => '<a href="/act/51348/motor-vehicles-act-1988-complete-act">Motor Vehicles Act, 1988</a> - Sections 149(2)',
		'appealno' => 'S.B. Civil Misc. Appeal No. 119 of 2004',
		'appellant' => 'National Insurance Company Ltd.',
		'authreffered' => '',
		'casename' => 'National Insurance Company Ltd. Vs. Smt. Radha Bai and ors.',
		'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. - (1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed. 18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.',
		'caseanalysis' => null,
		'casesref' => 'National Insurance Co. v. Challa Bharathamma;',
		'citingcases' => '',
		'counselplain' => ' Jagdish Vyas, Adv.',
		'counseldef' => ' Suresh Shrimali and; Rajesh Choudhary, Advs.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-02-02',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.P. Gupta, J.',
		'judgement' => '<p>N.P. Gupta, J.</p><p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.</p><p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.</p><p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.</p><p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.</p><p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.</p><p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.</p><p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.</p><p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.</p><p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.</p><p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'</p><p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-</p><p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.</p><p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-</p><p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-</p><p>(i) a condition excluding the use of the vehicle-</p><p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or</p><p>(b) for organised racing and speed testing, or</p><p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or</p><p>(d) without side-car being attached where the vehicle is a motor cycle; or</p><p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or</p><p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or</p><p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.</p><p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:</p><p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:</p><p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.</p><p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.</p><p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'</p><p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-</p><p>'207. Power to detain vehicles used without certificate of registration permit, etc.-</p><p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;</p><p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'</p><p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.</p><p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.</p><p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.</p><p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-</p><p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'</p><p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.</p><p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.</p><p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.</p><p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80',
		'ratiodecidendi' => '',
		'respondent' => 'Smt. Radha Bai and ors.',
		'sub' => 'Motor Vehicles;Insurance',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>N.P. Gupta, J.',
	(int) 1 => '<p>1. All these appeals arise out of the same accident, and vide different orders, passed in different files, on different dates, they have been ordered to be listed together, and are being disposed of by the common order. For convenience, the facts relating to Civil Misc. Appeal No. 119/2004 are being taken into account.',
	(int) 2 => '<p>2. The appeal came up for admission before the Court on 14.7.2004, and in view of the judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, the appeal as against the claimant was not admitted, and for that learned counsel for the appellant had no objection. As such the appeal against the claimant was dismissed, however, the appeal against the owner was admitted, and while dismissing the stay application, it was directed, that the appellant should deposit the whole amount as awarded by the learned Tribunal, which may be paid to the claimants, as per the terms of the impugned award. It was further directed, that the amount the released to the claimants keeping in mind the terms and conditions and observations and directions contained in the decision of the Hon'ble Supreme Court, in Oriental Insurance Co. Ltd. v. Nanjappan and Ors., AIR 2004 SC 1630. After service of the owner, the owner has filed an application on 14.1.2005, seeking reconsideration of the said direction, on the basis of the judgments of Hon'ble the Supreme Court in, New India Assurance Co. Ltd. v. Asha Rani, 2002 ACC 753 (SC), AIR 2003 SC 607, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACC 214.',
	(int) 3 => '<p>3. The matter comes up today for consideration of this application. However, since the controversy involved is very short, at the request of both the learned counsel, the appeals have been finally heard at this stage itself.',
	(int) 4 => '<p>4. The facts of the case are, that on 16.8.1995 at about 3.45-4 P.M., on Udaipur-Gogunda road, near the turn falling after Darjiyon Ki Kudi and after Jhalon Ka Guda, the Bus No. RPV-2119 was driven rashly and negligently by the driver, as a result of which it over-turned, and the passengers became the victim (some died and some received injuries). Out of this accident various claim petitions were filed. However, some of them were compromised by the owner with the claimants and ultimately by the impugned award 41 claim petitions are said to have been decided. All the present appeals arise out of the same judgment and award.',
	(int) 5 => '<p>5. Before the learned Tribunal, the appellant Insurer contested its liability on the ground of there being breach of policy conditions, i.e. the bus was carrying passengers beyond the capacity specified in the permit, being 40 (38+2), while more than 60 passengers are said to have been carried. On the relevant controversy issue No. 3 was framed by the learned Tribunal, and the same was decided by the learned Tribunal after considering the evidence of Asstt. Divisional Manager of the appellant, the permits being Ex. 6 and 7, and the factotum of prosecution having been lodged against the owner for offence under Section 66 and 192 of the Motor Vehicles Act, and it was found, on the authority of the judgment of Hon'ble Supreme Court, in State of Maharashtra v. Nanded Parbhani Z.L.B.M.V. Operator Sangh, (2000(I) ACC 290 = 2000-01 DNJ (SC) (Suppl.) 102 = RLW 2000(2) SC 276, that it cannot be said that the bus was not being used for the purpose for which permit was granted.',
	(int) 6 => '<p>6. Assailing the impugned judgment and award, it is contended by the learned counsel for the appellant, that it is not in dispute that according to the terms of the permit, in all 40 passengers (38+2) could be carried in the bus, while as has come on record, that in the accident 48 persons were injured, and 16 persons have died, it is clear that the vehicle was carrying passengers much beyond the permitted limit, and thus it clearly gives rise to a defence available to the appellant under Section 149(2)(c), and the appellant cannot be held liable. Learned counsel placed reliance on the Single Bench Judgment of Allahabad High Court, in Almora Magnesite Ltd. v. Deoki Devi, 1996 ACJ 978 and that of Hon'ble the Supreme Court, in National Insurance Co. Ltd. v. Challa Bharathamma, (2004(8) SCC 517 = 2004(2) WLC (SC) 689), and contended, the the appellant is not liable for payment of any compensation, and since the appellant has been made liable to pay the compensation, the since the appellant has been made liable to pay the compensation, the principles propounded by Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. v. Shri Najappan, (I (2004) ACC 524 (SC), and National Insurance Co. Ltd. v. Baljit Kaur, (I(2004) ACC 259(SC), should be followed, and the appellant should be given right to recover back the amount from the owner, straightway by execution proceedings.',
	(int) 7 => '<p>7. Learned counsel for the respondent, on the other hand, supported the impugned judgment, and has relied on the judgment in Nanded Parbhani's case.',
	(int) 8 => '<p>8. The judgment in Nanded Parbhani's case has been distinguished by the learned counsel for the appellant, on the ground, that in that case Hon'ble the Supreme Court was dealing with the provisions of Section 207, relating to the powers of police authority to seize the vehicle, which there was breach of permit conditions, while in the case in hand, the controversy is as to whether the Insurer can be held liable, in the case of there being breach of terms of the permit, and therefore, that case is distinguishable.',
	(int) 9 => '<p>9. I have considered the submissions, have gone through the judgments cited, relevant legal provisions, and the impugned award.',
	(int) 10 => '<p>10. Suffice it to say, that on facts, there is no dispute, that by permit Ex. 6 and 7 the total number of passengers that could be carried was 40 only (38+2). It is also not in dispute, that at the time of accident the vehicle was carrying passengers far outnumbering the permitted capacity, as is clear from the fact that 48 persons were injured and 16 had died. Thus, the only question is, as to whether such carrying of passengers in excess number i.e. beyond the permitted capacity, does provide a defence to the Insurer under Section 149(2)(c) of the Motor Vehicles Act, hereafter to be referred to as 'the Act.'',
	(int) 11 => '<p>11. For ready reference the provisions of Section 149 may be reproduced, which read as under:-',
	(int) 12 => '<p>'149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as in is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if the were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.',
	(int) 13 => '<p>(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-',
	(int) 14 => '<p>(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-',
	(int) 15 => '<p>(i) a condition excluding the use of the vehicle-',
	(int) 16 => '<p>(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire of reward, or',
	(int) 17 => '<p>(b) for organised racing and speed testing, or',
	(int) 18 => '<p>(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or',
	(int) 19 => '<p>(d) without side-car being attached where the vehicle is a motor cycle; or',
	(int) 20 => '<p>(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or',
	(int) 21 => '<p>(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotions; or',
	(int) 22 => '<p>(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.',
	(int) 23 => '<p>(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:',
	(int) 24 => '<p>Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effect, so much of the policy a purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:',
	(int) 25 => '<p>Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from the person.(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.',
	(int) 26 => '<p>(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will lake the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that there insurer is entitled to avoid or cancel or has avoided or cancelled the policy.',
	(int) 27 => '<p>(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-Section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'',
	(int) 28 => '<p>12. At the same time, since the judgment in Nanded Parbhani's case is sought to be distinguished on the ground that that case related to the provisions of Section 207, I think it appropriate to reproduce the provisions of Section 207 of the Act, which read as under:-',
	(int) 29 => '<p>'207. Power to detain vehicles used without certificate of registration permit, etc.-',
	(int) 30 => '<p>(1) Any policy office or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by the Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;',
	(int) 31 => '<p>Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by. order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.'',
	(int) 32 => '<p>13. Taking up the case cited by Mr. Vyas, Almora Magnesite's case is a Single Bench judgment of Allahabad High Court, wherein the learned Tribunal had made award of interim compensation of Rs. 25,000/-, and was directed to be paid by the owner, being the appellant Company. It was contended by the appellant therein, that it is the sole liability of the Insurance Company to pay the compensation. Reliance was placed on a judgment of Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, (1985 ACJ 1 (P&H;)), to contend that it was the sole liability of the Insurance Co. to make payment of compensation under Section 92-A of the old Motor Vehicles Act, 1939, and some other judgments were also cited. However, it was held, that while deciding the question of liability under Section 92-A, a detailed enquiry is not required, as such objections are to be decided later. It was also held, that the Tribunal was not required to decide liability of owner at this stage. It is in these circumstances, that it was noticed, that prima facie the Tribunal was satisfied that the conditions of Insurance policy were not complied with, as 37-38 persons were traveling at the time of accident which were beyond the capacity, and the appeal of the owner was dismissed.',
	(int) 33 => '<p>14. As against this, Hon'ble the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 ACJ 1178), was dealing with a case relating to the damage to the vehicle, as own damage claim. The vehicle therein was a goods vehicle, and the defence was taken by the Insurer about violation of policy conditions. The precise breach alleged was, that the vehicle was carrying passengers beyond the permissible capacity, and Hon'ble the Supreme Court held, that in accord with the Skandia's case, (1987 ACJ 311(SC)), the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, and accordingly the judgment of National Consumer Disputes Redressal Commission was set aside, and the owner was ordered to be compensated.',
	(int) 34 => '<p>15. Then, in Oriental Insurance Co. Ltd. v. Bare Lal, (1998 ACJ 248), a Division Bench of M.P. High Court also has the occasion to consider this aspect of the matter, inasmuch as, there the deceased was an employee (labourer) for the work of loading unloading of Truck No. MPL-3232, which met with an accident. The defence raised was, that the number of persons being carried in the vehicle exceeded the permissible limit of employees and relying upon a judgment of Hon'ble the Supreme Court, in B.V. Nagaraju's case, it was held, that the Insurer is liable, though the extent of liability was interfered with, in view of the fact that the liability was limited to the extent as permitted by Section 95(2) of the old Act.',
	(int) 35 => '<p>16. Then in Nanded Parbhani's case or course, Hon'ble the Supreme Court was dealing with the provisions of Section 207 of the Act, but then, in my view, that judgment has bearing on the present case on all the fours, inasmuch as, the precise question requiring to be gone into by Hon'ble the Supreme Court in that case was, as to whether the motor vehicle was being used in contravention of any of the conditions of the permit relating to the route on which, or the area in which, or the purpose for which, the vehicle may be used. In that case on facts, the vehicle was a luxury bus, and was found to be carrying passengers, excess in number then allowed by permit. It is on account of this violation that the bus was seized, and in para 8, interpreting the language of Section 207 it was held as under:-',
	(int) 36 => '<p>'Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression 'purpose for which the vehicle may be used' could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted.'',
	(int) 37 => '<p>17. Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.',
	(int) 38 => '<p>18. The defence precisely available to the Insurer under Section 149(2)(c) is, that the vehicle should be used for the purpose not allowed by the permit under which the vehicle is used, where the vehicle is Transport Vehicle. That being the position, the judgment in Nanded Parbhani's case, governs the present case on all the fours.',
	(int) 39 => '<p>19. So far the judgment in National Insurance Co. v. Challa Bharathamma's case (supra), is concerned, that was a case where, the vehicle was not having any permit, and the High Court has held, that since there was no permit, there was no question of any violation of the terms of the permit, setting aside such finding, it was held, that the view is clearly fallacious. It was further held, that a person without permit to pay a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Stress is laid by the learned counsel for the appellant on the expression used being 'but has violated any condition thereof', in my view, using this expression can hardly advance cause of the appellant, inasmuch as violation of any conditions obviously has to be read in the background of the provisions of Section 149(2)(c) of the Act, as mentioned above. Thus, this case does not help the appellant at all.',
	(int) 40 => '<p>20. The net out come of the aforesaid discussion is, that I do not find any error in the finding recorded by the learned Tribunal on issue No. 3. There appeals, thus, have no force, and are hereby dismissed.<p>',
	(int) 41 => '<p>'
)
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$i = (int) 41
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Subject	Motor Vehicles;Insurance
Court	Rajasthan High Court
Decided On	Feb-02-2005
Case Number	S.B. Civil Misc. Appeal No. 119 of 2004
Judge	N.P. Gupta, J.
Reported in	IV(2005)ACC105; 2006ACJ1241; RLW2005(1)Raj512; 2005(2)WLC80
Acts	Motor Vehicles Act, 1988 - Sections 149(2)
Appellant	National Insurance Company Ltd.
Respondent	Smt. Radha Bai and ors.
Appellant Advocate	Jagdish Vyas, Adv.
Respondent Advocate	Suresh Shrimali and; Rajesh Choudhary, Advs.
Disposition	Appeal dismissed
Cases Referred	National Insurance Co. v. Challa Bharathamma

National Insurance Company Ltd. Vs. Smt. Radha Bai and ors. - Court Judgment