M.G. Mukherji, C.J.
1. This special appeal arises out of a judgment and order dated May 17, 1996 passed by a learned single Judge of our Court in S. B. Civil Misc. Appeal No. 226/96 upholding the award dated 24-1-1996 as passed by the Motor Accidents Claims Tribunal, Phalodi in MACT Case No. 78/94 whereby the Tribunal passed an award of Rs. 1,08,150/- in favour ofthe claimants and against the present appellant-United India Insurance Company Limited and the owner of vehicle, the respondent No. 3 --Gurnam Singh.
2. Before the learned single Judge, the appellant contended that since the deceased was a passenger in the vehicle which was a truck and the said truck was not authorised to carry, any passenger on payment of any fare and the insurance policy issued by the appellant-Insurance Company did not cover such type of risks, if the passenger died as a result of an accident, even though it is assumed that it was on account of rash and negligent act on the part of the driver, the appellant-Insurance Company could not have been made liable for the compensation as awarded by the Tribunal. It was further contended that the learned Tribunal Judge erroneously determined the income of the deceased to be Rs. 1000/- p.m.
3. It was an admitted position that the deceased was travelling in Truck No. PJT 5923 from Phalodi to Baap and he paid his fare to the driver of the truck for his journey. It was on account of the rash and negligent driving of the truck by its driver that the accident was caused as a result whereof the deceased Sohanlal sustained injuries and he died ultimately of the said injuries.
4. The learned single Judge was satisfied on appreciation of the entire evidence on record that there was nothing to dispute the income of the deceased as assessed by the Tribunal, which could not be said to be either excessive or unreasonable. It was on the other hand based on the evidence which was led in the case. On the question as to whether there would be any liability for the Insurance Company on the basis of the insurance cover issued by it to also such cases where there is death or injury caused to a person travelling in the goods vehicle on payment of fare, the learned single Judge decided to rely upon a Full Bench decision of our Court in Santra Bai v. Prahlad, 1985 ACJ 762 : (AIR 1986 Raj 101). The learned single Judge thought that the Full Bench decision of the Bombay High Court in Oriental Fire and General Insurance Company v. Hirabai, AIR 1988 Bom 199, could not override the Full Bench decision of our Court in Santra Bai v. Prahlad, 1985 ACJ 762 : (AIR 1986 Raj 101) and was of the considered view that the Full Bench decision of our Court did not require areconsideration.
5. By filing the present special appeal, the learned advocate appearing for the appellant Mr. Manoj Bhandari contended before us that since the deceased Sohanlal was sitting in the truck as a gratuitous passenger and he suffered an injury and succumbed to the same, the Insurance Company was not at all liable in such cases as the insurance coverage did not envisage the risk of any damage caused to any person in a goods vehicle, more so in view of the fact that such carriage of passengers was without authorisation and it was beyond the insurance cover. The third party insurance did not cover such passengers who were allowed to travel in the vehicle in violation of the terms and conditions of the policy. Mr. Bhandari sought to bring out the distinctive types of differences in between the provisions of the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988. Whereas as per the definition clause in Section 2(8) of the Motor Vehicles Act, 1939, a goods vehicle means any motor vehicle constructed or adapted for use of the carriage of goods or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers, under the Motor Vehicles Act, 1988 as per Section 2(14), a goods carriage means any motor vehicle constructed or adapted for use solely for the carriage of goods or any motor vehicle not so constructed or adapted when used for the carriage of goods. Under Section 95( 1) of the Act of 1939, the requirements of policies and limits of liability were as follows :--
'Section 95(1) Requirements of policies and limits of liability.
(i) In order to comply with the requirements of this chapter, policy of insurance may be a policy which-
(a) is issued by a person who is an authorised insurer (or by a Co-operative Society allowed under Section 108 to transact the business of any insurer), and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-
(i) Against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of vehiclein a public place.
(ii) Against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicles in a public place.
PROVIDED THAT :
A policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in course of his employment, of the employees of a person insured by the policy or in respect of bodily injury sustained by second employee arising out of and in the course of his employment (other than a liability arising under the Workmen's Compensation Act, 1923) in respect of the death of, or bodily injury to any such employee-- (a) engaged in driving the vehicle or, (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods vehicle, being carried in the vehicle, or
(ii) Except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon entering or mounting or alighting from the vehicle at the time of occurrence of the event out of which claim arises, or
(iii) to cover any contractual liability.
EXPLANATION :
For the removal of doubts it is hereby declared that the death of or bodily injury to any person, or damage to any property of a third party shall be deemed to have been caused by or have arisen out of the use of a vehicle in a public place notwithstanding that a person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.' However, under Section 147 of the Act of 1988, the requirements of policies and limits of liability were to the effect following :--
Section 147 -- Requirements of policies and limits of liability.
(1) In order to comply with the requirements of this chapter, policy of insurance must be a policy which-
(a) is issued by a person who is an authorized insurer, and
(b) Insured the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
Provided that the policy shall not be required--(i) to cover liability in respect of the death arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury, to any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets in the vehicle, or
(c) if it is a goods carriage being carried in the vehicle, or
(ii) to cover any contractual liability.
EXPLANATION :
For the removal of doubts it is hereby declared that the death of or bodily injury to any person, or damage to any property of a third party shall be deemed to have been caused by or have arisen out of the use of a vehicle in a public place notwithstanding that a person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.'
6. The learned advocate appearing for the appellant cited before us the decision in Oriental Fire and General Insurance Co., Solapur v. Hirabai Vithal Nikam, AIR 1988 Bom 199, for the proposition that under the provisions of Section 96(2)(b)(i)(c) of the Motor Vehicles Act, 1939, a person travelling in a goods vehicle for hire with the consent of the driver and the owner where the vehicle is not covered with a permit to plypassengers for hire or reward, in the event of his death or bodily injury, the insurer is not liable. The words 'except where the vehicle is a vehicle in which passengers are carried for hire or reward' do not apply to transport or goods vehicle. As regards the definition of public carrier under the Motor Vehicles Act, 1939 as defined under Section 2(23), it cannot be said to cover a stranger who enters the vehicles for hire.
7. In Oriental Insurance Co. Ltd. v. Smt. Irawwa, AIR 1992 Karnataka 321, a Division Bench of the Karnataka High Court held that under a motor vehicles insurance policy issued by an Insurance Company in conformity with Section 147 of the Motor Vehicles Act, 1988, the Insurance Company is not liable by the force of Section 147 to pay compensation in respect of death of or bodily injury to any person travelling in a goods carriage as passenger whether as a hirer or otherwise. Therefore, the Insurance Company is not liable to pay compensation either on the ground of fault liability or on the ground of no fault liability to such passenger. The claimants of the deceased passengers are entitled to enforce the order against the owner of the vehicle. However, this does not apply to the driver and the employees carried in a goods carriage in respect of whom Section 147(1) requires compulsory coverage of the risk to the extent of liability under the Workmen's Compensation Act. While the definition given in the Section 2(8) of 1939 Act gave an indication that the goods vehicle could carry some passengers, the definition given in Section 2(14) of 1988 Act omits the words 'in addition to passengers' and states that goods carriage means any motor vehicle constructed or adapted for use 'solely for the carriage of goods'. Therefore, the question whether risk in respect of passengers carried in a goods vehicle should be covered by an insurance policy does not arise at all under the 1988 Act.
8. In the case of National Insurance Company Limited, AIR 1992 Karnataka 3, which was a Full Bench decision and a case covered under the old Act of 1939, it was held that where there was an accident which resulted in death or bodily injury to passengers carried in a goods vehicle, the Insurance Company is not statutorily liable to pay compensation and exception in clause (ii) of Section 95 (b) proviso is not attracted.
9. In New India Assurance Co. Ltd. V. Kanchan Bewa, 1994 ACJ 138, it was held that whether the persons travelling in a goods vehicle died or sustained injuries when they were carried for hire or reward in a goods vehicle, the Insurance Company is not liable to pay compensation because proviso (ii) to Section 95 (1)(b) did not apply to person carried in a goods vehicle for hire or reward and it is restricted to passengers carried in a public service vehicle. Even if he is carrying his goods after hiring the vehicle, the vehicle does not become a vehicle meant for carrying passengers for hire or reward and consequently, would not come within the proviso (ii) to Section 95(1)(b). The reason why this Orissa High Court decision of three learned Judges differed with the view as expressed by the Full Bench of our Court in Santra Bai v. Prahlad, 1985 ACJ 762 : (AIR 1986 Raj 101) was that allowing goods vehicle to be taken within the fold of proviso (ii) would introduce uncertainties in law as that would depend upon various factors and the result would be that the law would cease to be certain which it has to be at least in a case of the present nature. According to the view of the Orissa High Court, as per the definition of goods vehicle, the first part of it does not deal with carrying of passengers. It is the second part which speaks about the same and that too when the vehicle is used for such a purpose. The Orissa High Court did not prefer the liberal interpretation, but without any extra premium having been paid, the owner of a goods vehicle can claim indemnification from the insurer just because once in a year the goods vehicle had carried a passenger for hire or reward along with the goods and this would perhaps robe the third proviso dealing with the coverage of contractual liability lame.
10. In Santra Bai v. Prahlad, 1985 RLW 354 : 1985 ACJ 762 : (AIR 1986 Raj 101), it was specifically held that (i) in case of a gratuitous passenger going on joy-ride or on his own responsibility, the Insurance Company is not liable; (ii) in case of passengers carried for hire or reward or by reason of or in pursuance of a contract of employment in any vehicle, the Insurance Company is liable. This would include the owner of the goods as well as his employees; (iii) the insurer shall not be liable to cover liability in respect of the employee of the insured in respect of the death of or bodily injury to, anysuch employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 if such employee is (a) engaged in driving such vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods vehicle being carried in the vehicle; and (iv) the insurer shall not be liable to cover any contractual liability. It was held in this case that if the employees are held to be legitimate passengers, why not the owner of the goods, when he himself goes in the vehicle accompanying the goods or for bringing the goods. There does not seem to be any valid reason why the Legislature could have excluded the risk of the owner of the goods himself when he accompanied with the goods in the vehicle. This provision has to be given a beneficial construction and the owner of the goods would certainly fall in the category of passengers carried for reward by the insured and the owner of the goods when enters into a contract of the carriage of goods, such contract implies a contract for the safe and convenient transport of the goods from the beginning till the end. The contract of carriage of goods will unnecessarily involve the process of loading and unloading and safe transport of goods. The contract as such is of a composite character, and accompaniment of the owner of the goods himself or his employees will be a necessary party of such contract and a consideration paid for such contract would include such condition of carrying passengers for reward,
11. In B. v. Nagaraju v. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, (1996) 4 SCC 647 : (AIR 1996 SC 2054), it was held that breach of carrying humans in a goods vehicle more than the number permitted in terms of the insurance policy cannot be held to be such fundamental breach so as to afford ground to the insurer to deny indemnification unless there were some factors which contributed to the causing of the accident. Exclusion term of the insurance policy must be read down to serve the main purpose of the policy. As regards the insurance policy, the terms thereof should be read down and if the breach was an irregularity not such to justify total repudiation by the insurer of his liability under the policy. We have to look to the main purpose rule as regards the construction ofexclusionary clauses of the contract. The doctrine of fundamental breach has to be taken into account in this context. It was held in this reported case that it is plain from the terms of the insurance policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six 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 carrying. In the said case, the driver of the vehicle was not responsible for the accident and merely by lifting a person or two, or even three by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not 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. It was further held that the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle. Taking its cue from the decision of the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (1987) 2 SCC 654 : (AIR 1987 SC 1184), it was observed that whether the terms of the policy of insurance need to be construed strictly or be read down to advance the main purpose of the contract is the moot question. It was further observed that 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 wide exclusion clauses defining a promisor's contractual obligations, The main purpose of the contract has to be found out and in the language of Lord Halsbury, L.C. in Glynn v. Margetson & Co., 1893 AC 351, 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 the words even indeed the whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. Accordingly, wide exclusion clauses would be read down to theextent to which they are inconsistent with the main purpose or object of the contract.
12. If the aforesaid exclusion term of the insurance policy could be read down so as to serve the main purpose of the policy which is to indemnify the damage caused to the vehicle, we can take a liberal view of the entire perspective and hold that even a gratuitous passenger is liable to be compensated on account of the accident occurring in the manner as covered in the instant case.
13. In Shivraj Vasant Bhagwat v. Smt. Shevanta Dattaram Indulkar, AIR 1997 Bom 242, the same principle was followed by a Division Bench of the Bombay High Court.
14. In Manjit Singh v. Rattan Singh, AIR 1997 HP 21, a Division Bench of the Himachal Pradesh High Court was of the considered view that if the deceased travelled in a truck and paid fare to the driver of the truck, such use which may be irregular, but cannot be said to be so fundamental a breach to put an end to contract of insurance. The carriage of deceased was in no way a contributory factor to accident in question and hence, the insurer would be liable to pay compensation to the claimants.
15. A Division Bench of the Jammu and Kashmir High Court in New India Assurance Company v. Smt. Shakuntla Devi, AIR 1997 Jammu and Kashmir 40, also held that the Insurance Company cannot disclaim liability in respect of a particular class of persons or a particular kind of vehicle. If the victim of the accident was a labourer travelling in a truck, it was covered under Section 148 and the Insurance Company was liable to pay compensation.
16. A Gujarat High Court Full Bench in New India Assurance Co. Ltd. v. Kamlaben Sultansinh Jadav reported in AIR 1993 Gujarat 171, held that the insurer, in order to successfully disclaim his liability on the ground mentioned in Section 96(2) (b) of the Act of 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.
tii) that there was a 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 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 omission, the insurer would be liable to indemnify the insured.
17. In view of the ratios as propounded by the aforesaid judgments, we are of the considered view that the Full Bench decision of our Court in Santra Bai v. Prahlad, 1985 ACJ 762 : (AIR 1986 Raj 101) does not require a reconsideration even in the present context of the amended Motor Vehicles Act of 1988.
18. We are satisfied on facts that the quantum of compensation as awarded by the Motor Accidents Claims Tribunal and as upheld by the learned single Judge meets the ends of justice and it needs no revision.
19. Hence, the special appeal stands dismissed.