The New India Assurance Company Ltd. vs Siyaram Yadav and Others

R.C. Shrivastava, J.—This appeal by insurance company has been preferred u/s 110-D of the Motor Vehicles Act 1939, which will here-in-after be referred to as the Act, against award dated 9-11-1982 made by the Motor Accidents Claims Tribunal, Shivpuri, in case No. 17 of 1979.

The facts of the case are simple. On 7-5-1978, a goods transport vehicle (motor-truck) bearing registration No. UTE 3295 belonging to the respondent No. 2, driven by his servant, i.e., the respondent No. 3 and insured with the appellant met with an accident while plying on Jhansi Shivpuri road. It was plying under a public carrier''s permit granted u/s 56 of the Act. In that accident, the respondent No. 1, who was travelling in the vehicle on payment of Rs. 3/- as fare to the driver, i.e., the respondent No. 3, sustained serious bodily injuries On his application for award of compensation u/s 110-A of the Act, the Tribunal made the impugned award directing the appellant and the respondents 2 and 3 to pay Rs. 15,000/- to him as compensation with interest at Rs. 6/-p.c. per annum from the date of presentation of the application.

It may at-once be stated that the fact that the respondent No. 1 was carried in the vehicle on payment of Rs. 3/- as fare, i.e., for hire attracted the applicability of the first part of proviso (ii)to Section 95(1)(b) of the Act requiring statutory insurance. The proviso provides cover in respect of the risk to passengers even if they are carried in a vehicle which is not a public service vehicle if they are carried for hire or reward or by reason or in pursuance of a contract of employment. This position is so well settled that it is no longer open to doubt or debate. The liability could, however, be avoided by the insurance company on any or more of the grounds specified in Section 96(2) of the Act. It would suffice to refer only to the decision of a Full Bench of Gujrat High Court in Mathura Prasad and Others Vs. Saiyed Khurshed Ahmad and Others, wherein the matter was exhaustively dealt with.

The learned Counsel for the appellant has raised only the defence provided by Section 26(2)(b)(i)(a) which, leaving aside the irrelevant matter, reads as follows:

--the insurer--shall be entitled--to defend the action on any of the following grounds, namely:

(a) --

(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:

(i) a condition excluding the use of the vehicle-

(a) For hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward--.

Therefore, the first question arising for determination is whether, on the date of the contract of insurance, the vehicle was not covered by a permit to ply for hire, i.e., for carrying passengers on payment of fare. Rule 111(2) of the M.P. Motor Vehicles Rules, 1974 permits a specified number of persons to be carried in the cab of a goods vehicle subject to maximum of six in addition to the driver. It is also not disputed that the carrying capacity of the vehicle in question was 10 tons and 7 persons. But, Sub-rule (2) has to be read not in isolation but in conjunction with Sub-rule (1) which reads as follows:

Save in the cases of a vehicle which is being used for the carriage of police or a stage carriage in which goods are being carried in addition to passengers no person shall be carried in a goods vehicle other than a bonafide employee of the owner or the hirer of the vehicle, or the owner or the hirer and except in accordance with this rule.

The cumulative effect is that the persons allowed by Sub-rule (2) to be carried in the cab of a goods vehicle should be bonafide employees of the owner or the hirer of the vehicle or the owner or the hirer and none other. That is to say, the rule does not permit carrying of passengers on payment of fare. Under Sub-rule (3) of the same Rule, the Regional Transport Authority, by order in written, can, of course, permit a larger number of persons to be carried in the vehicle, such a permission is conditional, one of the conditions being that no goods at all are carried in addition to such persons and such persons are carried free of charge in connection with the work for which the vehicle is used. Even under that sub-rule, carrying of passengers in a goods vehicle for hire, i.e., on payment of fare, is not permissible. u/s 2(23) of the Act, public carrier means an owner of a transport vehicle who transports or undertakes to transport goods or any class of goods for another person at any time and in any place for hire or reward, whether in pursuance of the terms of a contract or agreement or otherwise, and includes any person, body, association or company engaged in the business of carrying the goods or persons associated with that person, body, association or company for the purpose of having their goods transported. As the goods vehicle in question was plying under a public carrier''s permit granted u/s 56 of the Act, only such persons as mentioned in Rule 111(1) and only such number of them as mentioned in Rule 111(2) could be carried in the vehicle. An application for grant of public carrier''s permit has to be made u/s 54 of the Act in form P.Pu.C.A. prescribed by Rule 77(1)(vi) of the Rules. Section 55 of the Act prescribes the procedure to be followed in considering the application. Section 56 deals with the matter of grant of the permit. There is nothing in the form or in these Sections to show that, in a public carrier''s permit, permission to carry passsngers on payment of fare can be applied for or granted. Therefore, it must be presumed that the carrier''s permit under which the vehicle in question was plying did not allow passengers to be carried on payment of fare. The presumption could be rebutted by the respondents on showing, by producing the permit, that it allowed passengers to be carried on payment of fare. But, none of them cared to do so. The permit must have been in possession of the respondent No. 2, the owner of the vehicle. The contention that it was no part of his duty to produce it unless called upon to do so because the burden to prove absence of the permit to carry passengers for hire or reward was on the appellant cannot prevail in view of decision of their Lordships of the Supreme Court in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. 1968 SC 1413. The following observations made by their Lordships may be quoted in that connection.

Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue point. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.

Adverse inference due to non-production of the permit must, therefore, be drawn against the respondents. It follows that the abovesaid presumption that the permit under which the vehicle in question was plying did not allow passengers to be carried on payment of fare, i.e., for hire holds good.

The only other point for decision is whether the insurance policy contained any specified condition excluding the use of the vehicle for carrying passengers on payment of fare, i.e., on hire. Admittedly, Ex. D-1, which appears to have been filed by the respondent No. 2, is an incomplete copy of the insurance policy; while, Ex. D-2 filed by the appellant is a complete copy thereof. The original policy was not produced by the respondent No. 2 despite the Tribunal''s order dated 31-3-1981 passed on the appellant''s application for ordering its production by him. The learned Counsel for the appellant has referred to proviso (c) to paragraph No. 1 of Section II in Ex. D-2, which proviso generally excludes liability of the insurance company in respect of death of or bodily injury to any person other than a passenger carried by reason of or in pursuance of a contract of employment. It does not specifically refer to passengers carried on payment of hire or plying of the vehicle for carrying passengers on payment of fare. No other condition has been relied upon. Thus, there is no specified condition therein excluding the use of the vehicle for carrying passengers on payment of fare, i.e., on hire.

It follows that, for want of existence of a specified condition in the insurance-policy, the defence provided by Section 96(2)(b)(i)(a) is not established and, therefore, the appeal must fail.

In the result, therefore, the appeal is dismissed with costs. The appellant shall pay costs of the respondent No. 1 who alone has contested the appeal. The Advocate''s fee shall be up to Rs. 300/- (Rupee three hundred) only, if pre-certified.