Summary
The Supreme Court upheld a pay-and-recover award where the offending truck had no permit on the accident date. A subsequent permit did not cure that absence. Use without a permit was a fundamental statutory infraction, distinguishable from the driving-licence and excess-passenger cases relied on by the insured. Statutory exceptions had to be pleaded and proved. The insurer was required to compensate the claimants and could recover from the owner and driver.
Issues
- Whether absence of a transport permit was a fundamental breach and whether an unproved statutory exception could excuse it.
- Whether requiring the insurer to pay the third-party award with a right of recovery was proper.
Provisions considered
- Sections 2(31), 66(1) and 66(3), Motor Vehicles Act, 1988A permit must be issued by the competent authority. Use of the transport vehicle without one violated the statutory requirement; exceptions could not be invoked by argument without pleading and proof. (¶¶ 7, 8, 9, 11, 23)
Held
- The permit was issued after the accident, and the vehicle had none when the accident occurred. Mere application for a permit did not entitle the owner to ply it. (¶¶ 5, 7, 11, 23)
- Absence of a permit constituted a fundamental statutory infraction. The insured could not equate it with the licence defects or excess-passenger breach considered in Swaran Singh and Lakhmi Chand. (¶¶ 17, 23)
- Exceptions under Section 66 must be pleaded and proved. Where absence of a permit was specifically raised and the insured produced no permit or evidence establishing an exception, the evidentiary burden could not be shifted to the insurer. (¶¶ 9, 10, 11, 23)
- The direction to the insurer to pay compensation and interest to the claimants, with recovery from the owner and driver, accorded with the pay-and-recover principles. (¶¶ 3, 23, 24)
Result
Appeal dismissed without costs. Award of Rs.15,63,120 with 9% interest from the award until realisation sustained, payable by the insurer with recovery from the owner and driver.