H.K. Rathod, J.
1. Oriental Insurance Co. Ltd., the opposite party No. 3 before the Motor Accidents Claims Tribunal, has preferred this appeal against the award dated 3.9.85 rendered by the Motor Accidents Claims Tribunal, District Palanpur, awarding a compensation of Rs. 18,000 together with interest at the rate of 16 per cent per annum from the date of the petition till realisation with proportionate costs against the opposite party Nos. 1, 2 and 3.
2. The brief facts giving rise to this appeal are as under:
On 11.6.1982, the accident occurred at 6.16 a.m. on Deesa-Tharad Road in which two trucks were involved, one was truck No. RRG 5902 which was coming from Badmer and going to Palanpur. The other truck No. GRS 6260 was standing on the road due to puncture in its tyre. One Pana-lal Bhimraj, a businessman, was going in truck No. RRG 5902, insured with the appellant, from Badmer to Palanpur for purchasing bajra at Palanpur. It was stated that the said truck was hired by Panalal Bhimraj and it was being driven by opposite party No. 1. The truck was being taken to Palanpur for lifting bajra from Palanpur to Badmer. The moving truck No. RRG 5902 collided with the stationary truck No. GRS 6260. No back light was indicated on the stationary truck. On account of this, the accident took place. The deceased, namely, Panalal Bhimraj fell down on the road and died on way to hospital. The truck cleaner also died because of this accident. It was also alleged that there were two other traders in the ill-fated truck, who also sustained injuries. It was further alleged that the accident took place due to negligent driving of the vehicle by the opposite party No. 1 and also due to negligence of the driver of the other truck, who did not take proper precaution of keeping the danger signal and back light on.
3. Two claim petitions were preferred, one by the heirs of the deceased trader Panalal Bhimraj and the other by the heirs of the deceased cleaner.
4. The claim petitions were not resisted by the opponent party Nos. 1,2, 4 and 5 despite service of notice. It was only resisted by the opposite party No. 3, who is appellant in this appeal. The defence of the appellant before the Tribunal was that the insurance company is not liable for any compensation because the deceased was not carried in the vehicle in pursuance of any contract of employment. It was further pleaded that the deceased was merely a gratuitous passenger and no risk was covered under the policy and hence, the company is not liable. In the alternative, it was pleaded that the liability of the insurance company is limited only up to Rs. 50,000.
5. The Tribunal decided the two claim petitions through a common judgment and concluded that the opposite party Nos. 1, 2 and 3 would be liable to pay compensation and not the opposite party Nos. 4, 5 and 6. With this finding Claim Petition No. 199 of 1982, out of which this appeal arose was allowed and award was rendered against opposite party Nos. 1, 2 and 3 for a sum of Rs. 78,000 together with 6 per cent per annum interest. In another Claim Petition No. 112 of 1983, an award was rendered against the same opposite party Nos. 1, 2 and 3 for a sum of Rs. 18,000.
6. No appeal has been preferred by the insurance company against award rendered in M.A.C. Petition No. 112 of 1983. The instant appeal, as mentioned above, arises out of award rendered in M.A.C. Petition No. 199 of 1982.
7. We have heard Mr. Rajni H. Mehta, learned Counsel for the appellant and Mr. Chetan Pandya representing Mr. S.V. Raju for respondent Nos. 1 to 5. The respondent No. 6 was deleted. The respondent No. 7 was served, but none appears on his behalf. So also, nobody appears for respondent Nos. 8 to 10.
8. The contention of Mr. Rajni H. Mehta, learned Counsel has been that the case is fully covered by the Apex Court's verdict in the case of Mallawwa v. Oriental Insurance Co. Ltd. 1999 ACJ 1 (SC) and as such, the insurance company is not liable to pay any compensation to the claimants. Mr. Pandya, on the other hand, contended that the Apex Court's verdict in Mallawwa's case (supra), is not applicable to the facts and circumstances of the case. He made strenuous efforts to distinguish the verdict of the Apex Court.
9. At the outset, it may be mentioned that Mr. Mehta has not challenged the finding of the Tribunal that the opponent No. 1, namely, the driver of the truck No. RRG 5902 is clearly negligent and is fully responsible for the accident. He however contended that in spite of this finding, in view of decision in the case of Mallawwa 1999 ACJ 1 (SC), insurance company is not liable because there was breach of the terms and conditions of the insurance policy and that there was no permission under the policy to carry passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of Workmen's Compensation Act, 1923.
10. Before appreciating the above contention, we propose to dispense some of the arguments raised by Mr. Pandya. His first contention has been that the insurance company has not examined any witness from its side and as such, adverse inference is to be drawn against the insurance company. He has placed reliance upon two verdicts of the Supreme Court in the case of Ishwarbhai C. Patel v. Harihar Behera (1999) 3 SCC 457 and in case of Vidhya-dhar v. Manikrao (1999) 3 SCC 573. On the face of these two cases, it can be said that the law laid down by the Apex Court in these two cases is not applicable to the facts of the case before us. What the Apex Court has laid down in these two cases is that if a party, may be a plaintiff or a defendant, does not enter the witness-box to support his case and does not allow an opportunity to cross-examine him, an adverse inference can be drawn against such party. Here, there was no occasion for the insurance company to examine the officers of the same. The reason is that the insurance company admitted that the truck No. RRG 5902 was insured with it. It is well settled law that a fact which is admitted need not be proved. Since the insurance company admitted that the truck aforesaid was insured with it, there was no requirement for the appellant to examine any officer to prove the insurance policy or the copy of the insurance policy. It is a matter of common knowledge that the original policy is handed over to the owner of the vehicle. The owner of the vehicle, as mentioned earlier, did not file any written statement nor appeared before the Tribunal in response to the summons issued to him by the Tribunal. Consequently, there was no obligation on the part of the insurance company to summon the original policy from the owner of the truck. On the other hand, the law is quite settled that if the claimants want to claim compensation either from the owner of the vehicle or from the driver of the vehicle or from the insurer of the vehicle, it is for them to establish following things:
(i) That the accident took place, in which the motor vehicle was involved.
(ii) Such accident took place due to rash and negligent driving of the vehicle by its driver.
(iii) That the driver of the vehicle had valid licence for driving heavy vehicle in the case where the truck was involved in the accident.
(iv) That injury either personal or fatal was caused to the victim. Unless these ingredients are established by the claimants they cannot succeed in claiming any compensation. Thus, the initial burden lies upon the claimants to establish that the vehicle was insured. For that, they have to summon the insurance policy from the owner. As such, there cannot be any shifting of burden of proof upon the insurance company to summon the original policy from the owner, more particularly when the insurance company had admitted the factum of insurance and has relied upon the copy of the insurance policy placed on the file by the insurance company. In these set of facts we are unable to accept the contention of Mr. Pandya that the copy of the insurance policy is not proved, hence it could not be read in evidence and mere marking of paper is not enough and this copy of policy could not be admitted in evidence or read in evidence unless it was exhibited. On this technicality, more particularly when factum of insurance of the vehicle is admitted by the insurance company, the case of the appellant cannot be turned down.
11. Another contention of Mr. Pandya has been that proper issues have not been framed, as a result of which respondents were prevented from adducing evidence. His main contention has been that no specific issue has been framed that the insurance company is not liable because the driver or the owner committed breach of the terms of the insurance policy. However, the parties fully knew their case and at this stage, in the first appeal, the matter cannot be remanded on this technical ground. We have to examine the issues framed by the Tribunal. Issue No. 3 is to the effect that, which of the opponents are liable and to what extent. This is a wider issue which covers whether the insurance company is liable or is not liable and if it is liable to what extent liability can be imposed and fastened upon the insurance company. Thus, we do not find any merit in the contention that there was any defect in the trial inasmuch as proper issues were not framed.
12. We are also not inclined to accept the contention of Mr. Pandya that adverse inference should be drawn against the appellant for not examining any of its officers for the reasons stated in the foregoing portion of our judgment. Adverse inference can be drawn only if certain points were to be proved by the insurance company and that for proving such points, the insurance company fails to examine material witness. The insurance company was not obliged to examine any witness for the fact which was admitted by it. As such, there was no occasion for drawing adverse inference against the appellant for not examining any of its officers.
13. Mr. Pandya has further contended that Mallawwa's case 1999 ACJ 1 (SC), is not applicable to the facts of the case before us. However, in our opinion, this case is fully covered by the Apex Court verdict in Mallawwa v. Oriental Insurance Co. Ltd. (supra). In para 10 of this judgment, the Supreme Court has laid down the test which has to be kept in mind for deciding the nature of the vehicle. It has been laid down that for the purposes of Section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers were carried if the vehicle was of that class. Keeping in mind the classification of vehicles by the Act, requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions as a vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to Section 95(1)(b), the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been a systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward.
In this case, the Apex Court after considering the conflicting views of various High Courts, approved the view taken by the Orissa High Court in case of New India Assurance Co. Ltd. v. Kanchan Bewa 1994 ACJ 138 (Orissa). Mr. Pandya has however tried to distinguish this verdict by referring to paras 19 to 22 of the judgment of the Orissa High Court in New India Assurance Co. Ltd. (supra). However, we do not find any force in the distinction suggested by Mr. Pandya.
14. The Apex Court in the above case has laid down that mere use of a vehicle on one or two occasions or on a stray occasion for carrying passengers will not render the vehicle as one meant for carrying passengers generally or usually. From the impugned judgment of the Tribunal, it is clear that the deceased Panalal Bhimraj boarded the truck at Badmer and was going to Palanpur for purchasing bajra. Thus, from Badmer to Palanpur, he was going as a passenger and he was not going as owner of his grain, namely, bajra. If it was to be carried from Palanpur to Badmer, in that event, it could be said that he was travelling in the ill-fated truck as owner of the goods. It is also clear from the judgment of the Tribunal that there were two other traders in the truck. Consequently, it seems difficult for us to accept that the truck was hired solely by Panalal Bhimraj. As such, on way from Badmer to Palanpur, the status of the deceased was that of a passenger and a passenger travelling in goods vehicle is not entitled to any compensation from the insurance company, so also the legal representatives of such victims in case he expired in the accident.
15. Mr. Mehta has also brought to our notice printed conditions in the policy regarding the limitations as to use. Third clause of this limitation as to use reads as under:
The policy does not cover use for carrying passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of Workmen's Compensation Act, 1923.
16. There was thus specific stipulation in the policy providing that the policy will not cover use for carrying passengers in the vehicle except its employees. Mr. Pandya made unsuccessful attempt to argue that this limitation as to use is not binding because it is not reiterated in the conditions attached with the insurance policy. If limitations as to use were printed in the policy itself, there was no requirement that those conditions of limitation are reintroduced or re-incorporated in the conditions attached with the policy. There was thus breach of Clause (3) regarding limitations as to use of the vehicle and for this breach also, the insurance company cannot be saddled with any liability.
17. For the reasons stated above, we are of the view that the Tribunal fell in obvious error in granting compensation against the appellant. To that extent, the appeal succeeds. However, it is made clear that the award of the Tribunal as against the respondent No. 7 requires no interference or modification. Respondent No. 6 has been deleted in this appeal. They were opponent Nos. 1 and 2 before the Claims Tribunal.
18. The appeal is, therefore, allowed. The judgment and award of the Tribunal in M.A.C. Petition No. 199 of 1982 against the appellant is set aside. The amount deposited by the appellant and lying undis-bursed at the hands of the Tribunal shall be refunded to the appellant forthwith. No order as to costs.
19. At this stage, Mr. Pandya requests for staying the operation of this judgment to enable him to approach before the appropriate Forum. Request is declined.