Judgment:
Surinder Sarup, J.
1. A judgment is being recorded in F.A.O. (MVA) No. 77 of 1988.
2. This judgment will dispose of the following eight appeals which have been filed by the Oriental Insurance Co. Ltd. against the eight different awards of Mr. Janeshwar Goyal, Motor Accidents Claims Tribunal (II), Solan and Sirmaur Districts at Nahan dated 14.3.1988. These eight appeals arise out of the same accident in which about 20 people are stated to have died and the awards were made by the M.A.C.T. aforementioned in favour of the legal heirs of the deceased.
3. The facts giving rise to the appeals are that Baisakhi Fair known as Vishu Mela is held in village Sataun in the last week of April annually. People from far and near go to attend that mela with their agricultural produce and goods for the purpose of sale. As per the custom the said Vishu Mela in the year 1986 was held at Sataun on 26.4.1986.
4. A large number of people had boarded truck No. HPN 2049 with their produce in order to reach the mela and to display and sell their produce and other goods. While wending its way to Sataun, when the said truck reached village Gyana, it could not negotiate the curve and fell down to a depth of 400 feet in the khud. As stated above, about twenty people died in that accident and a number of others sustained injuries.
5. Various claim petitions were preferred before the Motor Accidents Claims Tribunal for different claims. They are as follows:
(1) Naraini Devi v.Raj Deep for Rs. 1,00,000(2) Durga Devi v.Raj Deep for Rs. 80,000(3) Nain Singh v.Raj Deep for Rs. 1,50,000(4) Najroo Devi v.Raj Deep for Rs. 1,00,000(5) Gumani v.Raj Deep for Rs. 1,50,000(6) Sodha v. BaldevSingh for Rs. 1,96,000(7) Sodha v. BaldevSingh for Rs. 80,000(8) Sodha v. BaldevSingh for Rs. 50,000
These claim petitions were filed under Section 110-A of the Motor Vehicles Act (hereinafter to be called as 'the Act'), on the pleadings that the accident took place due to the rash and negligent driving of Baldev Singh, respondent. The owner of the vehicle is stated to be Raj Deep Singh, respondent No. 1. The appellant Oriental Insurance Co. Ltd. is the insurer.
6. The owner and driver, respondent Nos. 1 and 3 respectively, did not appear despite service and were proceeded ex parte by the Tribunal. The appellant herein was the only party which contested the claim petition and in its written statement denied the accident due to want of knowledge, which under the law means admission by implication. It is further admitted that the vehicle in question was insured with the appellant at the relevant time. The stand of the appellant before the Tribunal was that the truck involved in the accident was a goods vehicle and the persons boarding it including the deceased were the passengers on hire or reward for which the vehicle was not insured. It was further alleged that the driver had no driving licence. On these facts, the appellant denied its liability to indemnify the owner of the vehicle. Regarding the rash and negligent act of Baldev Singh driver resulting into an accident and the entitlement of the claims to compensation, the same was denied for want of knowledge which again means admission by implication.
7. On the pleadings of the parties, the Tribunal framed the following issues in Naraini Devi's case:
(1) Whether the accident of truck No. HPN 2049 took place as alleged in the petition? ... OPP
(2) If issue No. 1 is proved, whether the accident was caused by the rash and negligent driving of the said truck by its driver Baldev Singh? .... OPP
(3) Whether the petitioner is legal heir of deceased and is entitled to compensation, if so, how much and from whom?. OPP
(4) Whether the claim petition is not in the prescribed form, if so, its effect?. OPR
(5) Whether the respondent insurance company is not liable in view of preliminary objections taken in the written statement? ... OPR
(6) Relief.
8. Issue Nos. 1, 2 and 3 were decided in favour of Naraini Devi, claimant and under the issue Nos. 3 and 6, Rs. 30,300 would be payable by the insurance company, i.e., the appellant herein. Under issue No. 4, it was held that the claim petition is in the prescribed form and under issue No. 5, it was held that the insurance company is liable to indemnify the owner of truck No. HPN 2049 involved in the accident but its liability is limited up to Rs. 50,000 in view of the terms and conditions provided in the insurance policy, Exh. RA. On these findings, the claim petition was allowed to the extent of Rs. 30,300 in favour of Naraini Devi and against the appellant Oriental Insurance Co. Ltd. giving rise to this appeal.
9. The facts in the other claim petitions are also more or less similar and it is not necessary to set them out in detail in this judgment. Suffice it to say that various amounts have been awarded by the Tribunal to the claimants and the insurance company has been made liable for the same.
10. We have heard the learned Counsel for the parties and we have gone through the record with their assistance. The main plank of attack in all these appeals by the respective counsel is in respect of issue No. 5, which indeed, is the main issue in all these cases.
11. Before proceeding to examine the legal position, the facts may be stated peripherally insofar as these are relevant to this issue. As found by the Tribunal admitted facts are that the truck involved in the accident, i.e., truck No. HPN 2049 is a goods vehicle and not meant for carrying the passengers. This has been so stated by Suresh Parkash, RW 2, under the terms and conditions of the insurance policy, Exh. RA, as admittedly the truck in question was insured with the appellant at the relevant time, under the head 'Limitations as to the use of public carrier', the policy does not cover the use of the vehicle for carrying passengers in the same except employees (other than driver) not exceeding six in number, under the purview of Workmen's Compensation Act, 1923. The deceased in the present case, i.e., Ghashi Ram boarded the said vehicle at Shilla with his goods, ginger and chillies, etc., and had also paid the fare for that purpose. In other words, he had hired the vehicle as an owner of his goods in the same.
12. Now coming to the legal position, a number of authorities were cited before the Tribunal and the same have been again cited before us. The first judgment is of the Full Bench of Gujarat High Court in the case of National Insurance Co. Ltd. v. Nathibai Chaturabhuj 1982 ACJ 153 (Gujarat). The following principles have been laid down therein (para 28):.The insurer in order to successfully disclaim its liability under Section 95 (1) () (ii) of the Act will have to establish:
(1) 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;
(2) that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of passengers for hire or reward; and
(3) that the vehicle was, in fact, used in the 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.
13. Now applying the above context to the facts of the present case, it will be seen that the insurance company has failed to prove that the deceased had been a passenger for hire or reward. On the other hand, it has been proved from the evidence on record that he was the owner of the goods for which the vehicle was hired by him. Thus the insurance company has failed to pass the test laid down in condition No. 3 above. Consequently, it cannot evade its responsibility to indemnify the owner of the vehicle.
14. In order to support the above conclusion with which we are in agreement on the facts of the present case, the Tribunal relied on another authority of Gujarat High Court in Ahmed Ahaiyat Saiyed v. Ibrahim Bhachal Shah 1985 ACJ 83 (Gujarat), it was held therein that owner of the goods travelling along with his goods in the goods vehicle is entitled to the compensation from the insurance company for the injuries received by him in case that vehicle meets with such an accident.
15. The learned Tribunal relied on a reported decision of the Orissa High Court which is National Insurance Co. Ltd. v. Laxmi Devi 1985 ACJ 48 (Orissa), for the proposition that the deceased who had hired the vehicle in question to (Sic.) company his risk being covered under Section 95 (1) (b) proviso (ii) of the Act. In this connection, the observations of the Rajasthan High Court in Santra Bai v. Prahlad 1985 ACJ 762 (Rajasthan), were referred to by the Tribunal with advantage.
16. There appears to be a preponderance of authorities which have taken the same view as enunciated above.
17. As a result of the above discussion, we are of the considered view that the legal position has been correctly applied by the Tribunal to the admitted facts of the present case and in view of the terms and conditions of the insurance policy to indemnify the owner of the vehicle, has been rightly limited up to Rs. 50,000. The finding under issue No. 5 by the Tribunal is thus affirmed.
18. Now coming to the question of rash and negligent driving. As already stated above in the written statement defendant's assertion to that effect in the claim application was denied for want of knowledge, meaning thereby that it was admitted by implication.
19. The learned Counsel for the insurance company in all these cases sought to challenge the quantum of compensation as awarded by the Tribunal but on going through the evidence on the record, we find no reason to disagree or differ from the conclusions arrived at by the Tribunal and the amounts as awarded by it to the various claimants in these appeals appear to be just and proper.
20. No other point has been urged.
21. For the reasons recorded above, there is no merit in these appeals, all of them are dismissed with costs.