Judgment:
R.G. Vaidyanatha, J.
1. All these appeals are directed against the common judgment and order dated 23-1-1987 in M.A.C. Petitions Nos. 1 to 19, 39 and 40 of 1983 on the file of the Member, M.A.C.T., Nasik. Common arguments were heard on these three appeals and all these three appeals arise out of one and the same accident and are being disposed of by this common judgment.
2. In the first appeal, claimants had filed Claim Petition No. 20 of 1983, the second appeal arises out of the Claim Petition No. 10 of 1983 and the third appeal arises from the Claim Petition No. 8 of 1983. All these claim petitions arise out of an accident that took place on 6-6-1982 at about 8.15 p.m. The case of the claimants is that on 6-6-1982 about 22 persons were travelling in Lorry MWN 56 along with their goods viz., rice bags from Surgana to Alangun; the truck belongs to the first appellant and the second appellant was the driver of the truck at the relevant time. It is the case of the claimant that the truck was being driven in a rash and negligent manner as a result, it turtled. As a result of the accident all the claimants sustained injuries caused to them. One injured Pandu Balu Gavit died as a result of the injuries sustained by him. The 21 injured persons and the heirs of the one deceased person filed 22 claim applications before the Court below claiming various sums of money as compensation. The appellants filed the written statement contesting the claim. They denied the allegation that there was contract for transporting the goods in the lorry. The owner also stated that the driver respondent No. 2 had not been engaged by him to drive the lorry on that particular day. The insurance company-respondent No. 3 in the trial Court disputed its liability for the compensation amount. It was urged by the insurance company that the claimants being passengers in a goods vehicle are not entitled to claim compensation from the insurance company.
3. The learned trial Court framed appropriate issues. Both the parties adduced their evidence. After recording evidence and hearing both the sides, the learned trial Court held that the accident was due to rash and negligent driving of the driver of the lorry. It also recorded a finding that all the injured claimants had sustained injuries as a result of the accident. It recorded a finding that those persons who were travelling in a goods vehicle are not entitled to get compensation from the insurance company. It held that the owner of the vehicle and driver are jointly and severally liable to pay compensation. Accordingly, all the 22 claim petitions came to be allowed only against the appellants. The claim was rejected against insurance company.
4. Being aggrieved by the judgment and decree of the trial Court, the owner and the driver have filed these three appeals.
5. The learned Counsel for the appellant contended that in view of the evidence led by both the parties in the Court below and the findings recorded by the learned trial Court, the learned trial Court erred in rejecting the claim against the insurance company and making only the appellants to pay compensation to the various claimants. It was argued that on the basis of the evidence on record and the findings recorded by the trial Court, it was a case of the owners of the goods travelling in the lorry and not as a passengers and therefore, the insurance company is liable to pay the compensation. The learned Counsel for the claimants, who are respondents in these appeals, supported this argument and contended that the insurance company is liable to pay compensation in all the cases. But the learned Counsel appearing for the insurance company while supporting the impugned judgment about rejecting the claim against the insurance company, contended that it was not a case of owners of goods travelling in the lorry but it is a case of passengers being carried in the lorry for hire and therefore, the insurance company has been rightly held to be not liable. It was also argued that there is violation of statutory provision of Rule 118 and therefore, neither the claimants nor the appellants can make the insurance company liable. Then it was further argued that the appellants having taken inconsistent stand in the trial Court cannot now be permitted to argue the case of the claimants and make the insurance company liable.
6. In the light of the arguments addressed before me, the only point for consideration is whether the insurance company is liable to pay compensation in these three cases or whether the finding of the trial Court rejecting the claim against the insurance company is justified.
7. The facts are not much in dispute; though all the claimants have been examined only one witness has given evidence as to how the lorry came to be engaged. The other claimants have adopted the same evidence and common evidence has been adopted in all cases.
P.W. 1 - Bansu Bhoye is one of the claimants. He has told the Court that on that day he and other villagers had gone to Surgana for husking their paddy. They had taken paddy bags to the rice mill at Surgana, after the paddy was milled and rice was obtained, they had to return to their village with their respective rice bags. No bus was available at that time. Then they decided to find out whether any goods truck is available. Then it is his evidence that he approached the first appellant who was the owner of a truck. He negotiated with the first appellant and fixed his truck to transport them along with their goods to their village. The hire charges were fixed at Rs. 125/-. The distance between Surgana and Alangun is 12 k.ms. Those 22 persons had 35 gunny bags of rice. Then the gunny bags were loaded in the lorry. All those 22 persons boarded the lorry. Then he has stated about the nature of accident, injuries sustained etc., with which are not concerned at the moment.
In cross-examination he has denied the suggestion that they were carrying only small bundles. He admits that they have not produced the receipts issued by the rice mill for husking the paddy. He has denied number of suggestions. He says that he first contacted opponent No. 1 and the terms of hire were settled and then he agreed to transport the goods. He has again denied number of suggestions.
8. All other claimants have stated about the carrying rice bags in the lorry in question. But the only witness who spoke about the terms of carrying the goods is P.W. 1. I find that except few suggestions to him, which are denied by him, nothing is elicited to doubt or disbelieve his evidence. The learned trial Judge accepts the evidence of P.W. 1 on this point. The learned trial Court also recorded a finding that the truck was engaged to transport the goods with those persons. In fact, in para 22 of the impugned judgment, this is what the trial Court has observed :
'The evidence clearly shows that there was an agreement between claimants on one hand and the Opponent No. 1 on the other, to carry all the claimants and also their luggage, i.e. rice bags which they possessed from Surgana to Alangun for a sum of Rs. 125. The hire charges were also negotiated and fixed and were also collected by Opponent No. 1, before the journey started from Surgana.'
Then in para 23, the learned trial Court Judge observed that even if it is held that there was no direct contract with the owner and the agreement was only with the driver, even then, the owner is vicariously liable for the act of the driver.
Then again in para 26 of the impugned judgment, the trial Court clearly observes that these persons employed the truck on paying Rs. 125/- for carrying them and the goods in the lorry. But he goes on to observe at a later stage in para 26 that these persons were carrying their goods not to protect goods though they might be carrying some bags of rice and hence, it cannot be said that they were travelling in the truck qua as owner of the goods. Then he observes that it is a case of the truck carrying some passengers for hire and therefore, the insurance company is not liable.
9. Now evidence given by P.W. 1 and which is accepted by the trial Court and the finding in para 22 of the judgment is that it was a case of these 22 claimants engaging a lorry on paying a consolidated sum of Rs. 125/- to carry the goods along with them from Surgana to Alangun. It is not a case of picking up of some passengers enroute. It is common ground that all these persons had to go to Surgana for husking the paddy. All of them boarded the truck by engaging the said truck for a consolidated sum of Rs. 125/ with the driver to carry the goods to a common destination viz., Alangun. If we examine these facts, then there is no difficulty to hold that the truck being employed by these 22 persons to carry their rice bags and the persons travelled in the lorry as owners of the goods; in such a situation, the question is whether the insurance company is liable to pay compensation or not.
10. Now we may refer to some decisions bearing on the point under consideration. One of the earlier decisions of this Court on this point is Nasibdar's case reported in : AIR1984Bom1 Nasibdar v. M/s Adhia & Co. A Division Bench of this Court took the view that if the hirer of the goods is travelling in the lorry as passenger then the insurance company is liable to pay compensation. That means, we will have to make a distinction between a gratuitous passenger or a passenger who has paid hire or reward on the one hand and the owner of the goods travelling in the lorry with the goods. In the first two cases, there could be no difficulty to hold that the insurance company is not liable to pay, but in the later case where hirer of the truck or the owner of the goods travelled in the lorry then the insurance company cannot escape its liability to pay compensation. That is the law laid down by the Division Bench in Nasibdar's case.
I may also refer to two decisions of the Karnataka High Court which have taken identical view that if the owners of the goods are travelling in the truck, the insurance company is liable; in : AIR1980Kant25 T.M. Renukappa v. Fahmida. It was held that the owner of goods is travelling in the lorry, the insurer is liable for the owners risk.
Another Division Bench of Karnataka High Court in A.I.R. 1982 Kar 261 United India Insurance Co. Ltd. v. Gangamma, speaking through K. Jagannatha Shetty, J. (as he then was, who later became the Judge of the Apex Court) observed that when number of claimants were travelling in the lorry with their respective goods in the lorry and the lorry meets with an accident, the insurance company is liable to pay compensation. That was also a case of number of claimants travelling with the goods on paying hire charges to the driver of the lorry.
The same point again arose for consideration before another Division Bench in the case of 1995 (1) M.L.J. 167 Oriental Insu. Co. Ltd. v. G. Padmawati. There also it is pointed out that if the employee of the owner of goods travels in a goods vehicle then the insurance company is liable to pay compensation. It is observed that though a goods vehicle is normally meant for carriage of goods only, still, the owner of goods or the employee of owner of goods is entitled to travel in the lorry.
11. The learned Counsel for the insurance company contended that according to rule 118 of the Motor Vehicles Rules, even if the owners of the goods are entitled to travel, the number cannot exceed 7 in a vehicle of this type. Since in this case, the number was more than 7 persons, it was argued, that it was a case of breach of policy and breach of a statutory provision and therefore, the insurance company is not liable. This point is also no longer res integra and covered by the decision of this Court on this point.
In a latest decision of a Division Bench of this Court reported in : AIR1997Bom242 Shivraj Vasant Bhagwat v. Shevanta Dattaram Indulkar, it was a case where 10 labourers were travelling in a lorry; as per the terms of the insurance policy, only 6 labourers were permitted to travel in the lorry. One of the labourers sustained injury and filed a claim petition. The insurance company took a stand that since more than 6 labourers were being carried in the lorry, there is a breach of the terms of the policy and therefore the insurance company is not liable. The Division Bench agreeing that there was a violation of breach of conditions of the policy, still it was pointed out that it is not such a failure so as to take away the liability of the insurance company. After referring to number of decisions on the point, this Court held that the insurance company is liable though there was a breach of the condition in the policy.
In : AIR1986Bom386 Raghunath v. Shardabai, it was a case of truck dashing against two pedestrians and no doubt the claim petitions had been filed by the heirs of the two pedestrians who died in the accident. But the insurance company took a stand that the owner had committed contravention of a condition in the policy and violated a statutory liability viz., Rule 118 of the Motor Vehicles Rules, on which, the learned Counsel for the insurance company placed reliance before me. It was also a case where number of tomato baskets were being transported in a lorry and about 15 to 16 owners of different baskets travelling in the lorry as owners of the goods; Identical argument was addressed before the Division Bench that since under Rule 118 of the Motor Vehicles Rules, the maximum number of owners of goods to travel are only 7 and since 15/16 owners of goods had travelled in the lorry, there was a breach of condition of the policy and breach of the statutory rule viz., Rule 118 of the Motor Vehicle Rules. The Division Bench repelled this argument and held that notwithstanding such a breach, the insurance company cannot escape its liability to pay compensation.
The matter is also covered by a direct and latest authority of the Apex Court reported in : AIR1996SC2054 B.V. Nagarju v. Oriental Insurance Co. Ltd. No doubt that was a matter arising from a dispute before the said consumer forum. The owner of the vehicle had lodged a claim before the insurance company for damage caused to the lorry. The insurance company took the stand that since the lorry had violated statutory provisions, it is not liable to pay compensation. The stand of the insurance company was that since the goods vehicle had been used for carrying the passengers and there is violation of the terms of the policy, the insurance company is not liable. The Supreme Court rejected this argument and held that the insurance company is liable.
The learned Counsel for the insurance company relied on a decision of Allahabad High Court reported in Almora Magnesite Ltd. v. Deoki Devi, where a learned Single Judge of that Court held that if more persons are being carried in the vehicle in breach of the terms of the policy, then the owner alone is responsible and not the insurance company. With great respect I am unable to subscribe to this view, particularly, when there are decisions of the Apex Court and Division Bench of this Court taking a contrary view.
12. The learned Counsel for the insurance company contended that the appellants having taken a different stand in the Court below, cannot now be permitted to contend a different case and they are estopped from taking up such a stand in the High Court. It is true that the appellants did not take the stand in the Court below that the claimants were travelling in the truck as owners of goods; there was a general denial. The learned Counsel for the appellants is now arguing before this Court that in view of the evidence on record and the findings recorded by the trial Court, the insurance company is liable and not merely the owner and driver. In my view, in such a case, a plea of estoppel does not arise at all. The appellants want to contend that on the basis of finding recorded by the trial Court on facts, the trial Court could not have rejected the claim against the insurance company. If the trial Court had accepted the appellant's case then the claim petition should have been dismissed on the ground that some third person had driven the lorry who had no authority to drive the lorry. The trial Court rejected their contention. The trial Court recorded a finding that the owner of the lorry had agreed to transport the goods of 22 claimants on payment of Rs. 125/-. The trial Court recorded one more finding that even if the owner had not entered into such a contract and the driver had entered into such a contract and consequently, the owner is responsible. But in the further discussion, the trial Court observation is that the insurance company is not liable. If once we come to the conclusion that the owner of the goods travelled in the lorry, the question is whether the insurance company is liable or not. The appellants are entitled to canvass that in the face of that finding the trial Court could not have rejected the claim against the insurance company. On the basis of finding of fact recorded by the trial Court, the further question whether the insurance company was liable or not, was purely a question of law. The appellants are entitled to show that the trial Court's finding on a question of law is erroneous and liable to be interfered with by this Court.
After considering the entire material on record, I have no hesitation to reach the conclusion that this is a case of various claimants travelling in the lorry along with their goods and being owners of goods. In such a case, the owner and the driver are mainly responsible and consequently, the insurance company is also liable to pay compensation. The finding of the learned trial Court rejecting the claim against the insurance company is erroneous and liable to be set aside.
13. In the result, all the three appeals are hereby allowed. The order of the trial Court in the impugned judgment that the appellants' claim against the insurance company is dismissed with costs is hereby set aside. Now it is ordered that the insurance company-respondent No. 3 in the Court below is hereby directed to pay a compensation in all these three cases. In the circumstances, of this case, the appellants are not entitled to costs. Hence in the circumstances, there is no order as to costs in these three appeals.
On the request of the learned Counsel for the insurance corporation, operation of this judgment is stayed for 6 (six) weeks from today.
Certified copy of this Judgment/Order be issued expeditiously.