New India Assurance Co. Ltd. vs Manchhiben and Others

S.K. Keshote, J.—This group of appeals arise from common judgment and award of the Motor Accidents Claims Tribunal (Main) at Bharuch in the Motor Accident Claim Petition No. 399 of 1986 and allied matters decided on 16.1.1996. The claim applications have arisen from one and the same motor vehicle accident and those claim applications have been consolidated and decided under the common order. In view of this fact, these appeals are taken up for hearing together and are being disposed of by this common order.

Before the Motor Accidents Claims Tribunal there were in all nine cases filed by the claimants. Out of these nine cases except in M.A.C.P. No. 376 of 1986 rest were the cases of fatal accident and for the death of breadwinner the claimants lodged claim applications for obtaining compensation. M.A.C.P. No. 376 of 1986 pertains to bodily injury sustained by the claimant-appellant therein. The details of those M.A.CPs. together with the name of applicants and death or injury sustained, and the amounts claimed therein are as under:

---------------------------------------------------------------------------------- Sr. MACP Name of Death/ Amount claimed No. No. applicant(s) Injury Rs. ----------------------------------------------------------------------------------

376 of 1986 Nandaben Injury 9,999 Dhirambhai 2. 398 of 1986 Manchhiben wd/o Death 1,12,000 Ishvarbhai Chhitubhai and others 3. 399 of 1986 Chhotubhai Death 1,10,000 Hirabhai and two minors 4. 400 of 1986 Fuljibhai Death 1,10,000 Chhaganbhai and two minors 5. 401 of 1986 Raysang Bakorbhai Death 1,10,000 and two sons 6. 402 of 1986 Mangalbhai Death 1,20,000 Shakarbhai and three others 7. 403 of 1986 Khodabhai Govindbhai Death 1,00,000 and three others 8. 404 of 1986 Ukabhai Ranchhodbhai Death 75,000 and two others 9. 536 of 1987 Minor Shankarbhai Death 1,25,000 and others ----------------------------------------------------------------------------------

On or about 29.10.1985, the claimant in M.A.C.P. No. 376 of 1986 and her near and dear relatives left the places of their services in Salt Industry of Bharat Salt at Paniadara for their respective homes after completing their duty hours at about 4.00 p.m. They got seated in truck No. GTY 4825 of the ownership of Chandulal Amulakh Vora which was loaded with the bags of salt from Bharat Salt Industry and was proceeding towards Vadodara. This truck was being driven by Shankerprasad Krishnaprasad Sharma. It is the case of the claimants in the claim applications that all the occupants in the truck were travelling with their shovels and ''tagaras'', the implements of their labour work. It is the case of the claimants that the occupants agreed to pay Re. 1 as hire charges to driver of the truck and the driver allowed all the occupants to take their places in the truck. The claimants have come up with the case that the driver of the offending vehicle, truck herein, was driving the truck in rash and negligent manner with full speed so as to endanger the lives of the occupants. At about 4.30 p.m. when the said offending truck was about to reach near crossing of Kadodara and Padaria on Dahej-Amod Road, the driver of the truck suddenly took a turn of the truck with full speed, as a result of which, he lost the control over the vehicle and it fell in nearby gutter, which was filled with water, in a turtle condition. As a result of this accident, the occupants who were sitting on the bags of salt in the truck fell down and they were pressed beneath the bags of salt and eight persons have died and the claimants in these eight claim petitions are the persons claiming compensation from the owner, driver and the insurance company. The claimant in M.A.C.P. No. 376 of 1986 sustained bodily injuries. The claim application has been filed against the owner and driver of the vehicle and the insurance company which insured that truck has also been impleaded as party.

The driver of the truck put appearance and contested the claim applications of the claimants. The owner of the vehicle has by submitting a purshis adopted the written statement filed by the driver. The defence of the driver and owner of the truck is totally denial of the pleadings. The driver has given out the defence that at the place of accident new earth was being spread and filled in and, therefore, at the time of arrival of the truck at that place, that newly spread earth was pressed as a result of which, the wheel of the truck was gripped in that newly spread earth and truck turned on its side and, therefore, some of the labourers who were occupants in the truck, succumbed to their injuries and some sustained only injuries. The defence has been taken that the accident is not as a result of rash and negligent or careless driving of the truck driver. However, in the alternative they have taken the defence that ultimately in case the Tribunal comes to the conclusion that the said accident occurred as a result of rash and negligent driving of the driver of the offending truck, the owner would be vicariously liable to pay compensation and as the said truck was got insured by the insurance company, appellant herein, it is liable to indemnify the owner.

Insurance company had separately filed written statement and it had denied practically all the pleadings of the claimants. However, it admitted that deceased persons and other persons were sitting on the loaded truck. There was overweight in the truck No. GTY 4825 and, therefore, the owner and driver have committed breach of permit conditions. It is the case of the insurance company that the driver was not having valid driving licence at the relevant point of time and, therefore, it is not liable for the claim of the claimants. The insurance company has pleaded that the deceased and other persons were themselves negligent and contributed negligence to the accident. It is further defence of the insurance company that the deceased persons were not labourers as alleged but were gratuitous passengers in the truck. The passengers are not allowed in the truck as per the permit condition and, therefore, the insurance company is not liable for the claims. Lastly, it is the case of the insurance company that under the terms of policy, six coolies'' risk is covered while there were more than six coolies in the vehicle. The liability of the insurance company at the most is for six coolies only and for the rest of the labourers it is not liable.

The insurance company has added additional pleading after taking the permission of the Tribunal to do so. As per this additional pleading, the insurance company had contended that on the date of the contract of insurance, the insured vehicle was expressly or impliedly not covered by a permit to ply for hire or reward, i.e., by permit to carry any passengers for hire or reward. There was a specific condition in the policy which excludes use of the insured vehicle for carriage of passengers for hire or reward. As the vehicle was used in breach of the said specified conditions on the occasion, the insurance company is not liable to pay any compensation to the claimants.

The insurance company then filed an application Exh. 103 in M.A.C.P. No. 399 of 1986 (main case) and prayed for permitting it to amend the written statement filed early by deleting therefrom the portion, "the opponent says that under the terms of policy, only six coolies'' risk is covered by owner whereas there were more than six coolies on the vehicle. Opponent, therefore, says that the liability of it is for six bona fide coolies only and for rest of the claim, the opponent is not liable for claim". The application Exh. 103 by which the insurance company wanted to delete the above portion from its written statement came to be rejected by the Tribunal on 7.1.1991. The matter was taken by the insurance company before this court by preferring Civil Revision Application Nos. 730 to 738 of 1991. This court vide its order dated 20.8.1991 dismissed those civil revision applications. So the order of the Tribunal dated 7.1.1991 has attained the finality.

On the basis of the pleadings of the parties, learned trial court framed mainly three issues in these claim applications which are as under:

(i) Whether it is proved that the deceased sustained injuries and died on account of the rashness and negligence on the part of the driver of the vehicle involved in the accident?

(ii) What amount the claimants are entitled to by way of compensation and from which of the opponents?

(iii) What order?

Under the impugned award, the Tribunal has awarded in the cases the compensation together with interest at the rate of 12 per cent per annum and proportionate costs, the details of which are as under:

----------------------------------------------------------------------------------- MACP No. Claim amount Compensation amount Rs. Rs. ----------------------------------------------------------------------------------- 398 of 1986 1,12,000 86,400 with interest at the rate of 12 per cent, proportionate costs. 399 of 1986 1,10,000 69,360 -do- 400 of 1986 1,10,000 74,400 -do- 401 of 1986 1,10,000 76,650 -do- 402 of 1986 1,20,000 75,840 -do- 403 of 1986 1,00,000 52,100 -do- 404 of 1986 75,000 59,000 -do- 536 of 1987 1,25,000 63,800 -do- 376 of 1986 9,999 9,999 lump sum -----------------------------------------------------------------------------------

Against this award, the insurance company has filed these appeals before this court.

Learned counsel for the appellant contended that the learned Tribunal has assessed the income of the deceased on higher side. It has next been contended that the rate of interest awarded in the award is towards the higher side. Lastly, it is contended that the deceased persons were travelling in the truck, a private vehicle, as passengers. As the insured has violated the terms of policy as well as the truck was not covered under any permit, the insurance company could not have been made liable for the payment of the amount of compensation. In the alternative, the learned counsel for the appellant contended that the Tribunal at the most could have awarded the compensation to the claimants in six claim applications but it has exceeded its jurisdiction to award the compensation in all cases.

None put in appearance for the claimants-respondents.

I have given my thoughtful consideration to the submissions made by the learned counsel for the appellant and perused the impugned award.

The insurance company under the Motor Vehicles Act, 1939 or 1988 has only statutory defences and it cannot challenge the award of the Motor Accidents Claims Tribunal relating to the income of the deceased or rate of interest it has awarded. These are the general defences which cannot be taken by the insurance company even before the Tribunal and it cannot be permitted to challenge the award to the extent it relates to the income of the deceased and the rate of interest as awarded in the award in these appeals also. It is not the case of the appellant that it has taken the permission of the Tribunal to raise all the defences, i.e., the defences which are available to the insured. I do not find anything on the record of the Tribunal that at any point of time the insurance company has made any request for permitting it to take all the general defences, i.e., the defences other than which are available to it and that permission has been granted. It is understandable that where the insurance company feels that the claimant and the owner of the vehicle are in collusion with each other or there is a conspiracy in between the claimant and the owner of the vehicle to get the higher amount of compensation, in appropriate case, on application filed by the insurance company, the Tribunal may permit it to take all the defences in case which are available to the driver and the insured. Otherwise, also on merits I do not find any merits in these two contentions. It is purely a question of fact and the Tribunal on appreciation of evidence produced by the claimants and the other side has to reach to its logical conclusion as to what income of the deceased should be taken for the purpose of determining the compensation to be awarded to the claimants. In this case, on the basis of evidence which has come on record, the Tribunal after appreciating the same has recorded a finding of fact to which no exception can be made. It is for the satisfaction of the Tribunal to record a finding on the question of fact on the basis of appreciation of evidence, which precisely has been done in the present case. These findings of fact recorded by the Tribunal do not suffer from any infirmity or illegality which calls for interference of this court in appeal.

Learned counsel for the appellant insurance company has made a general submission but he has failed to precisely point out how the finding of facts recorded by the Tribunal on the point of income of the deceased suffers from any infirmity or any illegality, which calls for interference of this court. In these matters, the appellate court has very limited power of judicial review with the finding of facts recorded by the Tribunal on appreciation of evidence. That judicial review is permissible only where the court finds that the findings recorded are based on no evidence or the Tribunal has ignored or not considered the material piece of evidence or it has misread the evidence or on the basis of material which has come on record no reasonable man could have reached to that conclusion or where the findings are perverse, i.e., there is no material evidence whatsoever in support thereof. Learned counsel for the appellant has failed to make out the case of any of the aforesaid categories. It is well settled provision of law that even if on the given set of evidence, two views are possible, still what the view taken by the Tribunal should not be interfered with by the appellate court. The first contention of the learned counsel for the appellant that the Tribunal has taken monthly income of the deceased towards the higher side is devoid of any substance.

In these matters, the Tribunal has awarded interest at the rate of 12 per cent per annum and I have seen it that in such matters the Tribunal and this court and the Hon''ble Supreme Court awarded interest at the rate of 12 per cent per annum. Otherwise also, 1 fail to see how this interest awarded at the rate of 12 per cent per annum in these matters can be said to be towards the higher side. The second contention of the learned counsel for the appellant is also devoid of any substance.

In this case, though it is evident that the driver has permitted the persons, i.e., the occupants of the truck on charging Re. 1 as fare. However, even if this admitted position is taken still it cannot be said to be a breach of term of policy for the reason that the insurance company, appellant herein, has failed to prove that the insured has permitted or authorised the driver to carry the passengers for hire or reward or the insured has consented to the action of the driver of the truck.

In the case of New India Assurance Co. Ltd. Vs. Kamlaben Sultansinh Jadav and Others, , Full Bench of this court held that the insurer in order to successfully disclaim his liability on the ground mentioned in Section 96 (2) (b) of the Motor Vehicles Act, 1939 has to establish:

(i) that on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward,

(ii) that there was specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward,

(iii) that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward, and

(iv) that the vehicle was used by the insured or at his instance in breach of specific conditions including a condition that in the goods vehicle passengers for hire or reward were not to be carried. If it is done without knowledge of the insured by the driver''s acts or omissions, the insurer would be liable to indemnify the insured.

In the case in hand, it is not the case of the appellant before the Tribunal that the offending vehicle was used by the insured or at his instance in breach of specific conditions including a condition that in the goods vehicle passengers for hire or reward were not to be carried. In case, there is a breach of specific condition including a condition that in the goods vehicle the passengers for hire or reward were not to be carried is done without the knowledge of the insured by the driver the insurer would be liable to indemnify the insured. It is neither the case of the appellant before the Tribunal nor it is the submission of the learned counsel for the appellant that the driver of the vehicle has breached the specific condition that in the goods vehicle passengers for hire or reward were not to be carried with the knowledge of the insured. It is not the case of the appellant nor it is the submission of its learned counsel before this court that the insured has permitted or authorised the driver of the truck to carry passenger therein for hire or reward.

The whole base of this contention is on the statement of the claimants before the Tribunal that the deceased has travelled in the truck as a paid passenger. Even if it is taken that the deceased paid the fare to the driver of the truck to carry him therein as a passenger, it cannot be taken to be an act or omission of the driver with the knowledge of the insured. The driver of the goods vehicle carries the passenger for hire or reward then his this act cannot be taken to be an act authorised or permitted or within the knowledge of the insured unless contrary is proved by the insurance company. The insurance company to get rid of its liability by invoking exclusionary clause in the policy has to establish by producing cogent and satisfactory evidence to the satisfaction of the Tribunal that the driver of the offending truck has carried the passengers for hire or reward under the instruction and knowledge of the insured. In this case, the insured has no knowledge about its driver having taken passengers for hire or reward and notwithstanding the exclusionary clause contained in the policy, the insurer appellant has rightly been held liable to indemnify the insured.

I consider it to be fruitful here to make reference to the decision of the Apex Court in the case of Sohan Lal Passi Vs. P. Sesh Reddy and others, . In para 12 of the judgment, Apex Court observed as under:

...To examine the correctness of the aforesaid view this appeal was referred to a three Judges'' Bench, because on behalf of the insurance company, a stand was taken that when Section 96 (2) (b) (ii) has provided that the insurer shall be entitled to defend the action on the ground that there has been a breach of a specified condition to the policy, i.e., the vehicle should not be driven by a person who is not duly licensed, then the insurance company cannot be held to be liable to indemnify the owner of the vehicle. In other words, once there has been a contravention of the condition prescribed in Sub-section (2) (b) (ii) of Section 96, the person insured shall not be entitled to the benefit of Sub-section (1) of Section 96. According to us, Section 96 (2) (b) (ii) should not be interpreted in a technical manner. Sub-section (2) of Section 96 only enables the insurance company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in Sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. This bar on the face of it operates on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability? The expression ''breach'' occurring in Section 96 (2) (b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability under Sub-section (1) of Section 96. In the present case, far from establishing that it was the appellant who had allowed Rajinder Pal Singh to drive the vehicle when the accident took place, there is not even any allegation that it was the appellant who was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. From the facts of the case, it appears that the appellant had done everything within his power inasmuch as he has engaged a licensed driver Gurbachan Singh and had placed the vehicle in his charge. While interpreting the contract of insurance, the Tribunals and courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accidents Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well-known.

In view of the position of law and the factual position which have come on record, the impugned award does not suffer from any infirmity or illegality, which calls for interference of this court.

In the result, all these appeals fail and the same are dismissed.