United India Insurance Co. Ltd. vs Jayantibhai Atmarambhai Senma and Others

H.K. Rathod, J.—Heard learned advocate Mr. Hasmukh Thakkar appearing on behalf of United India Insurance Company Ltd.-appellant, learned advocate Mr. J.M. Barot appearing on behalf of respondent-claimants and learned advocate Mr. Rituraj Meena appearing on behalf of Oriental Insurance Company Ltd.

The appellant-insurance company has challenged common award dated 2/8/2007 passed by Motor Accident Claims Tribunal, Mehsana in MACP Nos. 1220 of 2000, 1217 to 1219 of 2000, 1221 to 1223 of 2000, 1182 to 1185 of 2000, 46 of 2001, 117 of 2001 and 1440 of 2000 wherein the Motor Accident Claims Tribunal has awarded compensation with 7.5% in favour of respondent-claimants.

Learned advocate Mr. H.M. Thakkar raised contention before this Court that Motor Accident Claims Tribunal has committed error in considering contention raised by insurance company that it is a case of breach of condition of policy by carrying passenger on hire and reward basis for which insurance policy was not issued by insurance company. According to conditions of policy, Jeep required carrying of or engaging in business or profession and no other purpose of insurance. Persons those who are carrying as passengers in Jeep not engaging in any business or profession then conditions of policy is violated by driver and insured, therefore, insurance company is not liable to pay compensation to the respondent-claimants. According to him, specific contention was raised in written statement by insurance company No. 12 where contention is that involved vehicle is private Jeep and insurance taken is for private use and as per terms and conditions of policy as well as RTO rules, policy does not cover risk for hired and reward as per RC book and policy. The seating capacity is only for six persons including driver but in this accident more than carrying capacity passengers were travelling in the said vehicle. As per FIR seven passengers were died and other passengers were injured. Therefore, it is a breach of terms and conditions of insurance policy. Therefore, insurance company is not responsible to pay compensation. He submitted that specific contention raised in para 12 of written statement, even though, that has not been considered by Motor Accident Claims Tribunal which amounts to basic error committed by the Tribunal. He also raised contention that accident occurred because of carrying more number of passengers than capacity of Jeep. He also raised contention that looking to the accident occurred between Jeep and Tanker, there was much or more negligence of Tanker in comparison to the Jeep, therefore inspite of 50:50 negligence, Jeep was responsible for 30%. Therefore finding given by Claims Tribunal in respect to negligence is erroneous on the basis of FIR. Therefore according to him, Claims Tribunal has committed gross error which would require interference of this Court. Except that, no other contention raised by learned advocate Mr. Thakkar before this Court and no other decision is relied by him.

Learned advocate Mr. J.M.Barot for respondent-claimants raised contention that award passed by Claims Tribunal is based on evidence on record and Claims Tribunal has rightly held responsibility of 50:50 of both drivers of Jeep and Tanker. He also raised contention that there is a head-on collision between Jeep and Tanker. Principle of res ipsa loquitor is rightly applied by Claims Tribunal. For that no error is committed by the Claims Tribunal. He submitted that when there is no specific evidence on record suggests a specific negligence of either of driver than in such circumstances in composite negligence normally 50:50 responsibility has been rightly decided by Claims Tribunal. He submitted that either of driver was not examined before Claims Tribunal and either of driver has not received any injury in said accident. Therefore according to him, Claims Tribunal has rightly passed an award. He also submitted that on behalf of insurance company, no evidence led to prove this contention before Claims Tribunal. He also raised contention that accident was not occurred because carrying of more passengers in Jeep but because of Tanker which over-tacked Truck and meanwhile the Jeep came from opposite side and Tanker dashed with Jeep and that is how heavy impact of Tanker to Jeep, seven persons lost their lives on the spot. Therefore, accident was not occurred because of carrying more passengers in Jeep. According to him, no interference is required by this Court.

Learned advocate Mr. Rituraj Meena supported the award passed by the Claims Tribunal.

I have considered the submissions made by learned advocates appearing on behalf of respective parties. I have perused award passed by Claims Tribunal. The accident occurred on 15/7/2000 near patia of Chandarda village where Tanker No. GTF-4271 and Jeep No. GJ-2-K-4620 collided and due to that Jeep turned turtle and seven persons were died those who were travelling in Jeep. Rest of passengers received injuries. For that driver of Tanker has filed FIR before Kadi Police Station and on that basis, claim petitions are filed by claimants before the Claims Tribunal. The written statement filed by both the insurance companies before Claims Tribunal and contention was raised by appellant-insurance company that accident occurred because more passengers were carrying in Jeep beyond permit. Thereafter issues were framed and Claims Tribunal has come to conclusion that due to head-on collision, both the drivers are equally responsible and therefore 50:50 negligence is decided. The Claims Tribunal has examined this issue in para-8. After considering the FIR vide Exh.-35 which was filed by driver of Tanker, Kanuji Ranchhodji Thakore and according to complaint, when he was going on from Becharaji to Ahmedabad and Ahmedabad to Becharaji after taking a diesel in Tanker at about 4:30 p.m. while going from Chandkheda to Becharaji at about 6:00 p.m. on high-way near Chandarad Patiya opposite Purohit Hotel while overtaking truck going ahead by the Tanker, one Jeep dashed with Tanker and turned turtle and seven persons died on the spot. The investigation was carried out by police authority as per First C.R. No. 253 of 2000 and Panchnama vide Exh.36 is also considered by the Claims Tribunal. According to the panchnama, one Tanker was lying on western side where front portion of Conductor side appears to be damaged. Even front show of Tanker was also damaged and wheel of Conductor side is also broken. According to panchnama, one empty Jeep Gadi is lying six feet away on south side from western track. Jeep was lying on turtle condition and looking to damage caused to the Jeep, the whole body of Jeep has been damaged seriously and estimated damage which has been caused to the Jeep is about one lakh. Jeep also damaged from Conductor side. Mudguard of wheel is broken and entire body has been crashed by impact of Tanker. The charge sheet was filed before Judicial Magistrate First Class, Kadi against the opponent No. 1-driver of Tanker. Whole allegations are made against driver of Tanker but looking to the condition of both the vehicles after accident and considering the decision of this Court in the case of GSRTC Vs. Hargovindas R. Modi and Others, and the decision in the case of Sujan Singh and Others Vs. Amar Singh and Others, the Claims Tribunal has considered that it is a clear case of composite negligence. Therefore, question of contributory negligence does not arise. Looking to evidence and damaged condition of both the vehicles, it is a case of head-on collision between Tanker and Jeep and in absence of evidence of either of driver before the Claims Tribunal, Claims Tribunal has come to conclusion that while going ahead Tanker overtaking Truck came to the middle of the road on that occasion, Jeep came from opposite side dashed with Tanker, that is how the accident occurred therefore, Claims Tribunal came to the conclusion of 50:50 negligence of both the drivers. The driver of Tanker and Jeep are not received any injury therefore, question of contributory negligence does not arise. The contention which has been raised by learned advocate Mr. Thakkar that looking to the carelessness and rashness of driver of Tanker who tried to overtake the Truck come to the wrong side covering more than middle portion of the road, that is how the accident occurred, therefore, negligence of driver of Jeep is 30% and not 50%. Considering the said contention raised by learned advocate, it is very difficult to accept it because Jeep driver was not examined before Claims Tribunal and there was a clear evidence on record of the Claimants as well as FIR and Panchnama which suggests that it is a case of head-on collision between both the vehicles therefore, 50:50 negligence has been decided by Claims Tribunal. For that Claims Tribunal has not committed any error. This aspect has been considered by the Hon''ble Apex Court in case of T.O. Anthony Vs. Karvarnan and Others, Para Nos. -5 and 6 of the said decision reads as under:

The Tribunal assumed that the extent of negligence of the appellant and respondent No. 1 is 50:50 because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several Tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that the compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.

''Composite negligence'' refers to the negligence on the part of the two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of composite negligence of those wrongdoers. In such a case, each wrongdoer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the inured need not establish the extent of responsibility of each wrongdoer separately, nor it is necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand, where a person suffers injury, partly due to negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.

Therefore in view of observations made by Hon''ble Apex Court as well as considering decision of Hon''ble Apex Court, reported in 2006 1 TAC 969 and decision of this Court reported in the case of GSRTC Vs. Hargovindas R. Modi and Others, the view taken by the Claims Tribunal cannot considered to be erroneous and correct view is taken by the Claims Tribunal therefore, contention raised by learned advocate Mr. Thakkar cannot be accepted.

The Hon''ble Division Bench of Madhya Pradesh High Court, Gwalior Bench in case of Guddi Devi and Others Vs. Madhya Pradesh State Road Transport Corporation and Others, has also decided the question of negligence in Para 13. Therefore, relevant Para 13 is quoted as under:

After careful perusal of the statement of this witness, we are not inclined to accept the contention of the learned Counsel for respondent No. 1 because the said witness has clearly stated that after the breakdown, the bus has again started and was moving at the time of the accident. There was head-on collision between the two vehicles. Hence, drivers of both the vehicles were equally responsible for the said accident and as has been laid down by the Full Bench of this Court in the case of Smt. Sushila Bhadoriya and Others Vs. M.P. State Road Transport Corporation and Another, we hold that the claimants are entitled to recover the amount of compensation from any of the joint fortfeasors.

The contention raised by learned advocate Mr. Thakkar that at the time when accident occurred, more passengers were travelling than prescribed limit and that is how accident occurred. The contention if it is raised by the insurance company himself have to be proved by leading proper evidence before Claims Tribunal, but on behalf of insurance company before Claims Tribunal, no evidence has been led to examine the driver of Tanker or any other evidence to prove the facts that because of more passengers travelling than prescribed limit, the accident has occurred. It is necessary to note that more passengers are itself cannot considered to be breach of terms and conditions of insurance policy. Such defense is not available to insurance company even as a statutory defense u/s 149(2) of Motor Vehicles Act. Therefore, contention raised by learned advocate Mr. Thakkar cannot be accepted because there is no evidence led by insurance company before Claims Tribunal to prove such contention as examined by this Court in reported decision in the case of National Insurance Company Ltd. v. Lakhuben Punabhai Vagri and Ors. reported in 2006 (2) GLH 468. Para Nos. 6 and 7 of the said decision reads as under:

It is now settled by a catena of decisions of the Supreme Court that all defences are to be proved by the insurer like the appellant. In the face of this specific averments in the claim petitions that the persons were travelling along with their goods, the onus to disprove this averment rests upon the appellant-Insurance Co. Had the appellant-Insurance Company discharged this onus, it would have gone a long way in proving whether, or not, the deceased persons were gratuitous passengers. Unfortunately, it has failed to do so and has not even brought the driver of the offending truck into the witness box. The burden to prove the breach of a term of contract rests squarely on the party which complains of such breach. The test which can be applied in such a situation would be that which party would fail if no evidence is led or the onus is not discharged. In the present case, the answer would be the appellant-Insurance Company. In this behalf, reference can be made to 1985 ACJ 397 ( National Insurance Co. Ltd. Vs. Swaran Singh and Others, In National Insurance Co. Ltd. v. Swaran Singh (supra) the Supreme Court has observed as under:

the proposition of law is no longer res intergra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi Vs. P. Sesh Reddy and others,

102 (i) xxx xxx xxx

(ii) xxx xxx xxx

(iii) xxx xxx xxx

(iv) The Insurance companies are however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish ''breach'' on the part of the owner of the vehicle, the burden of proof wherefor would on them.

(v) The Court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.

Applying the ratio of the law laid down by the Supreme Court, as referred to above, it is evident that the appellant, in the present case has failed to lead any evidence in order to prove that the deceased persons were gratuitous passengers who were travelling in an unauthorised manner in the truck and without any goods. The specific averment in the claim petition that the deceased persons were travelling in the truck along with their goods has not been dislodged during the entire proceedings before the M.A.C. Tribunal and in the absence of any evidence or material on record to the contrary, it is rightly been relied upon by the M.A.C. Tribunal to come to the conclusion that the deceased persons were travelling in the truck along with their goods and, as such they were not gratuitous passengers. Having failed to discharge the burden of proof in support of this contention, it is not open to the appellant at this stage to try and bring about a re appraisal of the evidence on facts. There is no reason for this Court to go into the factual aspect of the matter or enter into a re-appraisal of evidence since the impugned judgment and award does not suffer from any illegality or perversity.

Therefore, burden upon insurance company to prove the contention but no evidence has been led to prove such contention therefore naturally the Claims Tribunal has examined the matter on the basis of evidence and rightly came to the conclusion that accident is not occurred due to more passengers travelling in the vehicle-Jeep therefore, that contention is rejected.

Learned advocate Mr. Thakkar also raised contention before this Court that persons those who are travelling in Jeep they were paying fare to driver or owner of Jeep therefore, private vehicle has been used for hire and reward. No doubt, that contention has been raised in memo of appeal as well as in written statement in para-12 but no such contention has been pressed before the Claims Tribunal because this contention is not found placed in the award passed by Claims Tribunal. In such circumstances, presumption is that no such contention is raised by insurance company before Tribunal. In written statement or written arguments, number of contentions raised by the parties. The Claims Tribunal is not duty bound to consider each and every contention raised in written statement and written arguments but only contention to be considered which has been pressed in service by the parties before the Claims Tribunal. Therefore, for contention which is raised but not found placed, the presumption is that no such contention is raised by insurance company before the Tribunal. If the insurance company submitted that contention specifically raised by advocate and not reflected in the award, than remedy is available to the insurance company to approach the Claims Tribunal.

This Court cannot rely upon any affidavit or document which is contrary to record of Tribunal because Record and Proceedings of Claims Tribunal is considered to be conclusive. An affidavit or statement of advocate cannot be accepted by this Court. If a contention is raised and not considered by the Claims Tribunal, than remedy is available to insurance company to approach the Claims Tribunal. The contention of insurance company that passengers were travelling on the basis of paying fare and vehicle has been used for hire and reward for that also insurance company itself has to lead the evidence to prove such contention but no oral evidence has been led by the insurance company before the Claims Tribunal. Therefore burden upon insurance company but no where such contention raised before Tribunal or pressed into service, therefore, contention raised by the learned advocate Mr. Thakkar cannot be accepted. This aspect has been considered by apex court in case of Jagvirsingh and Ors. v. State (Delhi Admn.) reported in 2007 (5) SC 214. Relevant discussion made by apex court in para 4 of said decision is reproduced as under:

If really there was no concession, the only course open to the appellants was to move the High Court in line with what has been said in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, In Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors. AIR 2002 SCW 4939, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party while the matter is still fresh in the minds of the Judges, to call the attention of the very Judge who has made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellants to contend before this Court to the contrary.

Similarly, recently also, this aspect has been examined by apex court in case of Mohd. Akram Ansari v. Chief Election Officer and Ors. reported in AIR 2008 SCW 416. Para 14 of said decision is reproduced as under:

In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with.

Recently also, apex court has delivered judgment on 21st November, 2008 in case of Md. Rafique @ Chachu v. State of West Bengal reported in 2008 (15) SCALE 15 wherein it was observed by apex court that ''if a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the mater must necessarily end there. It is not open to the appellant to contend before this Court to the contrary.'' Relevant discussion made in para 5 of said decision is reproduced as under:

It would be logical to first deal with the plea relating to absence of concession. It is to be noted that the appellant conceded certain aspects before the High Court. After having done so, it is not open to the appellant to turn around or to take a plea that no concession was given. This is clearly a case of sitting on the fence and it is not to be encouraged. If really three was no concession, the only course open to the appellant was to move the High Court in line with what has said in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, . In a decision Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. if a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the mater must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. The above position was highlighted in Roop Kumar Vs. Mohan Thedani,

Recently, the Hon''ble Apex Court has in case of Ex. Contable Ramvir Singh v. Union of India and Ors. reported in AIR 2009 SCW 163 has decided the same in Para 9 & 10, which are relevant, therefore, Para 9 & 10 are quoted as under:

The question as to whether he was discriminated against vis-a-vis the aforementioned Kalipada Mandal having not been raised by him before the High Court, we are of the opinion that it is not possible for us to consider the said contention which has been raised for the first time. Mr. Pandey submitted that such a contention had been raised in the Writ Petition. It might have been raised but it does not appear from the impugned judgment that the same was pressed before the High Court. This Court is bound by the Judge''s record. If the High Court, as contended by Mr. Pandey, despite raising a contention in that behalf did not deal therewith, the only remedy available to him was to move the High Court drawing its attention thereto. Apart from the fact that the said procedure was not adopted by appellant, even before us, neither the counsel appearing in the High Court nor the appellant, affirmed any affidavit that such a contention, in fact, had been raised before the High Court. It is, therefore, not possible for us to accept that the contention as regards the discrimination against the appellant vis-a-vis the said Kalipada Mandal was raised.

In State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 462, this Court held:

When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. `Judgments cannot be treated as mere counters in the game of litigation.'' (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty.) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain.) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

[See also Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, and Bhagubhai Dhanabhai Khalasi and Another Vs. The State of Gujarat and Others,

In respect to the contention that number of passengers travelling in the vehicle i.e. more than prescribed limit, same has been examined by the Division Bench of Allahbad High Court in the case of Divisional Manager, National Insurance Company Ltd. v. Smt. Budhiya and Ors. reported in I 2002 ACC 369 . Para-4 of the said decision reads as under:

We have heard Mr. S.K. Mehrotra, learned Counsel for the appellant who contended that the bus was being driven with 57 passengers while only 19 passengers were permitted. The Hon''ble Supreme Court in B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, has held that even if the number of passengers travelling in the vehicle are more than permitted in terms of Insurance Policy, still the Insurance Company is liable to pay compensation.

The Hon''ble Apex Court in case of B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, has also considered the same in Para 6 & 7, therefore, the Para 6 & 7 are quoted as under:

Learned Counsel for the appellant, in support of this appeal, strongly relied on Skandia''s case [supra], making a servant appeal that the terms of the policy afore referred to, should be read down to carry out the main purposes of the policy as the presence of 9 persons [when upto 6 were permissible], irrespective of their being employees or not, had not contributed in any manner to the occurring of the accident as also went he claim did not relate to any injuries to those 9 persons (who were owners of the goods loaded) or any loss incurred by them; the claim pristinely relating to the damage caused to the vehicle insured, which could not have been denied in the facts and the circumstances. Strong reliance, in support, was sought from the reasoning of the State Commissioner which had in so many words said:

....Even for the sake of argument, that 9 persons travelling in the vehicle were passengers, it cannot be a ground for Insurance Company to repudiate the contract as the fact of their being passengers or collies does not make any difference to the risk involved. These persons were in no way concerned with the cause of the accident not have they contributed to the risk in respect of the loss caused to the vehicle. The complainant has not claimed any compensation in respect of his liability to the persons travelling in the vehicle.

It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was not carrying. Here it is nobody''s case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a persons or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. In Sikand''s case this Court paved the way towards reading down the contractual Clause by observing as follows:

...When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of ''reading down'' the exclusion clause in the light of the ''main purpose'' of the provision so that the ''exclusion clause'' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carter''s "Breach of Contract" vide paragraph 251. To quote:

Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wise exclusion clauses defining a promisor''s contractual obligations. For example, in Glynnn v. Margetson & Co. 1893 AC 351, 357, Lord Halsbury, L.C. stated : It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard .... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societed'' Armement Maritime S.A. v. N.V. Rotterdamsche Kolen Centrale 1967 1 AC 361. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract.

In view of observations made by this Court after considering the evidence on record, the accident itself suggests to apply principle of res ipsa loquitor because of head-on collision either of driver is not examined and not received any injury and no evidence led by insurance company before the Claims Tribunal for the same. The Claims Tribunal has rightly considered the evidence of the claimants, FIR, panchnama and also damage caused to both the vehicles while holding responsibility of 50:50 of both the drivers. For that, according to my opinion, the Claims Tribunal has not committed any error which would require interference of this Court and no contention raised by learned advocate Mr. Thakkar in respect of quantum of each case, therefore, this Court has not considered the question of quantum also and according to opinion of this Court, Claims Tribunal has rightly examined question of quantum and also rightly awarded compensation to claimants in each case that cannot considered to be on higher side or unreasonable. Therefore, all appeals filed by Insurance Company are having no substances, therefore, no interference is required. Hence all the above appeals are dismissed.

In view of orders passed by this Court today in first appeals, civil applications for stay does not survive. Same are, therefore, disposed of accordingly. If any amount is deposited by the insurance company before Registry of this Court, Registry of this Court is directed to transmit same immediately to concerned Claims Tribunal. Interim relief granted by this Court at the time of condoning delay to be vacated.