MAHESHARI, J. - (1.) THIS appeal under Section 173 of the Motor Vehicles Act, 1988 ('the Act') has been preferred by the owner of the vehicle involved in accident against the award dated 28. 06. 1994 made by the Motor Accidents Tribunal, Jodhpur in Claim Case No. 214/1991 whereby the Tribunal has awarded compensation in the sum of Rs. 44,621/- to the injured claimant for the loss suffered by him due to the injuries sustained in accident; but has exonerated the insurer of its liability on the ground that the vehicle was being plied on a nationalised route in contravention of the terms of permit.
(2.) ONLY the finding on exoneration of the insurer having been questioned in this appeal, a brief reference to the background facts would suffice. The claimant-respondent No. 1 Ramesh Chand Vyas, while joining his wife Smt. Chandra Kanta as claimant No. 2, sought compensation in the sum of Rs. 3,04,250/- against the driver, owner, and insurer of a mini bus bearing registration No. RJ19 P 0123 for pecuniary and non-pecuniary losses with the submissions that on 15. 03. 1991 they were travelling with other members of family from Jodhpur to Sivana in a Jonga Jeep bearing registration No. RRQ 7177; that they took halt at a hotel near village Jatiyasani at about 8:00-8:30 p. m. ; that the claimant No. 1 alighted and proceeded to answer the call of nature when the non-applicant No. 1 brought driving rashly the aforesaid mini bus bearing No. RJ19 P 0123 and hit him on the wrong side of the road causing extensive bodily injuries; that the claimant No. 1 remained hospitalised for about 53 days, had to undergo operations for treatment of fractures on his right leg and right arm, his wife was also required to take leave from her job for about 6 months to attend on him; and that he has suffered permanent disablement of the affected limbs and was still under physiotherapy. The non-applicants Nos. 1 and 2, the driver and owner of the mini bus, alleged in their reply, inter alia, that the claimant himself was driving the jeep without licence and caused the accident with rash driving of the jeep whereby the mini bus of the non-applicants turned over and the claimant was thrown out of his jeep. It was also submitted that the bus was insured with the non-applicant No. 3 at the relevant time. The non-applicant No. 3 insurer while filing a separate reply contended that the jeep driver had stationed the jeep on the road without any indication; that the accident occurred when the oncoming bus suddenly applied the brakes in order to save the jeep; and that the accident would not have occurred if the jeep were parked down the road. In its additional pleas, the insurer took the defence, inter alia, that the driver of the bus was not holding valid professional licence; that at the time of incident, the vehicle was not covered under valid permit; and that the owner of the vehicle RJ19 P 0123 has violated the policy conditions and, therefore, the insurer was not liable. Such objections of the insurer, relevant for the present appeal, read as under:- ********* The Tribunal framed relevant issues for determination of the questions involved in the case about the responsibility towards the accident, on the quantum of compensation, and in relation to the defence put forward by the insurer. The parties led evidence in support of their respective stand and on behalf of the insurer was examined its Administrative Officer Subhash Chandra Bohra as NAW-1; a copy of the insurance policy was produced as Ex. NA/1 and that of the permit of the bus in question as Ex. NA/2. In issue No. 1, the Tribunal held that the accident occurred for rash and negligent driving of the bus in question that caused several bodily injuries to the claimant No. 1 including fracture of his right femur bone and compound fracture on his right forearm. In issue No. 2, after assessment of the loss suffered by the claimant No. 1, the Tribunal found him entitled for compensation in the sum of Rs. 44,621/ -. Issue No. 3 in the present case was framed thus: **********
(3.) ON the two aspects involved in issue No. 3, the Tribunal held in the first place that the driver of the offending vehicle, non- applicant No. 1 Hanuman Singh, was holding a valid driving licence. ON the second aspect related to the permit of the vehicle in question, the Tribunal referred to the statement of NAW-1 Subhash Chandra Bohra and to the permit Ex. NA/2 and found that as per the terms of permit, the vehicle could not have been plied on a nationalised route or any part thereof; but the accident occurred on Jodhpur-Balotra road that was a nationalised route; and as such it were a violation of the terms of permit. The Tribunal concluded that in such circumstances, the vehicle in question being not covered under valid permit, the insurance company was not liable for compensation. The entire consideration of the Tribunal on this relevant aspect relating to the permit reads as under:- ********** Consequently, the Tribunal proceeded to exonerate the insurer altogether and fastened the liability for payment of the amount of compensation on the non-applicants Nos. 1 and 2, driver and owner of the offending vehicle. Assailing the findings aforesaid, learned counsel for the appellant contended that the Tribunal has been in error in failing to consider that the vehicle was being plied under a valid 'all Rajasthan' permit; that there has not been any violation of the conditions of the insurance policy by the appellant; and that there was no reason for which the respondent- insurer could have been exonerated. Per contra, learned counsel for the insurer, while relying on a decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Challa Bharathamma and others: 2004 ACJ 2094 submitted that in the admitted fact situation of the present case where the permit stipulated that the vehicle would not be plied on a nationalised route and where the accident did occur on a nationalised route, there was a clear violation of policy condition and the Tribunal has rightly exonerated the insurer. ;