Netrapal Singh Vs. Bhagwati Prasad and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/506750
SubjectInsurance;Motor Vehicles
CourtMadhya Pradesh High Court
Decided OnOct-09-1986
Judge G.C. Gupta, J.
Reported inI(1987)ACC502
AppellantNetrapal Singh
RespondentBhagwati Prasad and ors.
Cases Referred and T.M. Renukappa v. Smt. Fahmida and Ors.
Excerpt:
- - it was his case that there was a sudden failure of brake as a result of which the vehicle left the road and dashed against the tree.g.c. gupta, j.1. this appeal filed under section 110-d of the motor vehicles act, 1939 (hereinafter referred to as the act) is directed against the award dated 10-2-1982, passed by shri v.d. bajpai, accident claims tribunal, seoni in claim case no. 32 of 1980 making the appellant alone liable to pay the compensation.2. the respondent no. 1 claiming to have suffered an accident and injury during the same on 26th april, 1980 filed a claim before the claims tribunal alleging that the injuries suffered by him were because of the rash and negligent driving of truck no. mpq 3587 owned by the appellant and driven by the respondent no. 2. the said truck is admittedly insured with respondent no. 3. it was alleged that the respondent no. 1 had hired the truck for transporting his mahua and was accompanying the said goods from seoni. the truck turned turned at silua ghati and dashed against a tree. the respondent no. 1 admittedly received injuries in the aforesaid accident. the accident was reported to the police and respondent no. 2 was prosecuted for offence under section 304a of the indian penal code. the appellant denied that the accident resulted because of rash and negligent driving. it was his case that there was a sudden failure of brake as a result of which the vehicle left the road and dashed against the tree. the learned claims tribunal, analysing the oral and documentary evidence, held that the accident was as a result of rash and negligent driving of respondent no. 2. the tribunal accordingly held the appellant vicariously liable to compensate the respondent no. 1. the tribunal, however, held that since the respondent no. 1 was being carried in the truck as a passenger, the insurance company was not liable to indemnify, as the insurance policy does not cover the use of the conveyance for hire or reward. the appellant in the present appeal is only challenging the finding in regard to the liability of insurance company and is not challenging either the finding regarding rash and negligent driving or his liability to pay the compensation to respondent no. 1.3. the respondent insurance company has admitted that the vehicle was insured with them. the insurance policy is available on record (3 na1). according to this policy, the risk covered is not only of the driver and cleaner, but also six coolies besides the compulsory third party insurance. from the details of the vehicle given in the policy, it appears that it was 1973 truck meant to be used as a public under a permit issued within the meaning of the act. the liability of the insurance company is limited to rs. 50,000/-. in the column 'limitation as to use', it is montsoned as under:use only under a public carrier's permit within the meaning of the motor vehicles act, 1939. the policy does not cover use for organised racing or a speed testing.it is however subject to conditions attached to the policy or those contained in endorsement nos. 2(a) and 16. as far as endorsement no. 16 is concerned, it deals with liability of the insurance company to persons employed in connection with the operations of and/or maintaining and/or loading and/ or unloading of motor vehicles and covers the liability under the workmen's compensation act or at common law. as far as the liability to third party is concerned, it is contained in clause-c attached to the policy and indemnifies the insured against all sums including claimant's costs and expenses, which the insured shall become legally liable to pay in respect of death of or bodily injury to any person caused by or arising out of the use of motor vehicle. it would, therefore, appear that the policy covered many more risks than the law requires the insurance company to cover. the only limitation as to use of the vehicle is that it should have a public carrier's permit. it is common ground that the vehicle had a public carrier's permit and was in deed being used for the said purpose at the relevant time. the learned judge has held that this policy does not cover the use of the convenience for hire or reward' (para-44). the word 'convenience' appears to be a spelling mistake and should be substituted by 'conveyance' in order to properly appreciate the same. since the only limitation as to use of the motor vehicle is the one quoted above, it is not understood as to how the learned tribunal felt that the motor vehicle was not required to be used for hire. this again appears to be a mistake. as a public carrier the 'vehicle' is usually required to carry goods of the public for hire and, therefore, no such condition to its use could be implied. in deed, from the policy, it does not appear that such a condition has been imposed. inspite of it, it is clear that the appellant had undertaken to transport mahua from seoni. the mahua itself belonged to m/s. jai arabe trading company, seoni, who had authorised the respondent no. 1 to accompany the mahua along with necessary documents (ex p-1). that mahua is an excisable commodity and hence it cannot be transported without a permit from the district excise officer is not in doubt. the mahua was purchased by the respondent no. 1 from krishi upaj mandi vide ex. p-3 under a permit issued by district excise officer (ex p-4). its transportation was permitted from seoni to the godown of the purchaser only by the permit (ex.p-5). mahua being an excisable commodity, it must be accepted that the respondent no. 1 was required to accompany the same so as to produce necessary documents for checking, whenever re juired. it was in that context that the respondent no 1 was in the truck at the relevant time. can it, therefore, be said that the respondents' liability was not covered by the insurance policy. in patharibai v. firulalji 1985 mplj 84, a division bench of this court considered case of a labourer employed by the person whose goods were being transported in the truck for lifting the bag from the vehicle on reaching the destination. the truck met with an accident resulting in death of the labourer. it was contended by the insurance company that it was not liable as the deceased was not in the employment of the owner of the truck. negativing the said contention, the division bench held that on a plain reading of section 95(1)(b) of the act, makes it clear that the passenger carried by reason of or in pursuance of a contract of employment is not excluded from the insurance liability in respect of death of such passenger. proviso (ii) of the aforesaid provision was held to be covering the risk of all those, who are required necessity to be on the insured vehicle by reason of or in pursuance of a contract of employment and the employer having not been specified therein, it was held that there is no reason to put a limitation that the benefit of coverable of risk is intended only to those who are in the employment of the owner of the insured vehicle. it was further held that the risk to body or life of a person, who is not a gratuitous passenger, but is under an obligation to travel on the insured vehicle by reason of or in pursuance of the contract of employment is covered by insurance. position in the instant case is almost the same. here also, the mahua belonged to m/s. jai ambe trading company, who had required the respondent no. 1 to transport the mahua. the respondent no. 1 was necessarily required to remain present with the mahua so as to satisfy the excise authorities of its lawful transport. under the circumstances, there is no justification for holding that the risk in respect of respondent no. 1 was not covered.4. there is yet another reason why the insurance company should be held liable. rule 111 of m.p. motor vehicles rules, 1974 permits carrying the hirer or the owner of goods in the vehicle under specified circumstances. there is evidence on record to hold that the respondent no. 1 was travelling in the truck because he had hired the same to carry mahua. evidence of moti singh (p.w.2) would indicate that the respondent no. 1 was travelling in the cabin by the side of the driver. it would, therefore, appear that the driver by the respondent no. 1 was not in contravention of any of the conditions under rule 111 and was, therefore, legally permissible. such a person must, therefore, be held to be covered by the insurance policy.5. the view taken by the division bench in pathribai's case (supra) is also supported by the view taken by allahabad high court in abdul razak v. smt. sharifunnisan and ors. air 1983 allahabad 400, channappa chanavirappa katti and anr. v. laxman bhimappa bajantri and ors. air 1979 karnataka 93 and t.m. renukappa v. smt. fahmida and ors. air 1980 karnataka 25.6. the appeal consequently succeeds and is allowed. the appellant and the respondents 2 and 3 are held to be jointly and severally liable to pay the amount of compensation, interest and costs awarded by the claims tribunal to the respondent no. 1. the respondent no. 1 shall also be entitled to costs of this appeal. counsel's fee rs. 250/-.
Judgment:

G.C. Gupta, J.

1. This appeal filed under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) is directed against the award dated 10-2-1982, passed by Shri V.D. Bajpai, Accident Claims Tribunal, Seoni in Claim Case No. 32 of 1980 making the appellant alone liable to pay the compensation.

2. The respondent No. 1 claiming to have suffered an accident and injury during the same on 26th April, 1980 filed a claim before the Claims Tribunal alleging that the injuries suffered by him were because of the rash and negligent driving of Truck No. MPQ 3587 owned by the appellant and driven by the respondent No. 2. The said truck is admittedly insured with respondent No. 3. It was alleged that the respondent No. 1 had hired the truck for transporting his Mahua and was accompanying the said goods from Seoni. The truck turned turned at Silua Ghati and dashed against a tree. The respondent No. 1 admittedly received injuries in the aforesaid accident. The accident was reported to the police and respondent No. 2 was prosecuted for offence under Section 304A of the Indian Penal Code. The appellant denied that the accident resulted because of rash and negligent driving. It was his case that there was a sudden failure of brake as a result of which the vehicle left the road and dashed against the tree. The learned Claims Tribunal, analysing the oral and documentary evidence, held that the accident was as a result of rash and negligent driving of respondent No. 2. The Tribunal accordingly held the appellant vicariously liable to compensate the respondent No. 1. The Tribunal, however, held that since the respondent No. 1 was being carried in the truck as a passenger, the Insurance Company was not liable to indemnify, as the insurance policy does not cover the use of the conveyance for hire or reward. The appellant in the present appeal is only challenging the finding in regard to the liability of Insurance Company and is not challenging either the finding regarding rash and negligent driving or his liability to pay the compensation to respondent No. 1.

3. The respondent Insurance Company has admitted that the vehicle was insured with them. The insurance policy is available on record (3 NA1). According to this policy, the risk covered is not only of the driver and cleaner, but also six coolies besides the compulsory third party insurance. From the details of the vehicle given in the policy, it appears that it was 1973 Truck meant to be used as a public under a permit issued within the meaning of the Act. The liability of the Insurance Company is limited to Rs. 50,000/-. In the column 'limitation as to use', it is montsoned as under:

Use only under a public carrier's permit within the meaning of the Motor Vehicles Act, 1939. The policy does not cover use for organised racing or a speed testing.

It is however subject to conditions attached to the policy or those contained in Endorsement Nos. 2(a) and 16. As far as Endorsement No. 16 is concerned, it deals with liability of the Insurance Company to persons employed in connection with the operations of and/or maintaining and/or loading and/ or unloading of motor vehicles and covers the liability under the Workmen's Compensation Act or at common law. As far as the liability to third party is concerned, it is contained in Clause-C attached to the policy and indemnifies the insured against all sums including claimant's costs and expenses, which the insured shall become legally liable to pay in respect of death of or bodily injury to any person caused by or arising out of the use of motor vehicle. It would, therefore, appear that the policy covered many more risks than the law requires the Insurance Company to cover. The only limitation as to use of the vehicle is that it should have a public carrier's permit. It is common ground that the vehicle had a public carrier's permit and was in deed being used for the said purpose at the relevant time. The learned Judge has held that this policy does not cover the use of the convenience for hire or reward' (para-44). The word 'convenience' appears to be a spelling mistake and should be substituted by 'conveyance' in order to properly appreciate the same. Since the only limitation as to use of the motor vehicle is the one quoted above, it is not understood as to how the learned Tribunal felt that the motor vehicle was not required to be used for hire. This again appears to be a mistake. As a public carrier the 'vehicle' is usually required to carry goods of the public for hire and, therefore, no such condition to its use could be implied. In deed, from the policy, it does not appear that such a condition has been imposed. Inspite of it, it is clear that the appellant had undertaken to transport Mahua from Seoni. The Mahua itself belonged to M/s. Jai Arabe Trading Company, Seoni, who had authorised the respondent No. 1 to accompany the Mahua along with necessary documents (Ex P-1). That Mahua is an excisable commodity and hence it cannot be transported without a permit from the District Excise Officer is not in doubt. The Mahua was purchased by the respondent No. 1 from Krishi Upaj Mandi vide Ex. P-3 under a permit issued by District Excise Officer (Ex P-4). Its transportation was permitted from Seoni to the godown of the purchaser only by the permit (Ex.P-5). Mahua being an excisable commodity, it must be accepted that the respondent No. 1 was required to accompany the same so as to produce necessary documents for checking, whenever re juired. It was in that context that the respondent No 1 was in the truck at the relevant time. Can it, therefore, be said that the respondents' liability was not covered by the insurance policy. In Patharibai v. Firulalji 1985 MPLJ 84, a Division Bench of this Court considered case of a labourer employed by the person whose goods were being transported in the truck for lifting the bag from the vehicle on reaching the destination. The truck met with an accident resulting in death of the labourer. It was contended by the Insurance Company that it was not liable as the deceased was not in the employment of the owner of the truck. Negativing the said contention, the Division Bench held that on a plain reading of Section 95(1)(b) of the Act, makes it clear that the passenger carried by reason of or in pursuance of a contract of employment is not excluded from the insurance liability in respect of death of such passenger. Proviso (ii) of the aforesaid provision was held to be covering the risk of all those, who are required necessity to be on the insured vehicle by reason of or in pursuance of a contract of employment and the employer having not been specified therein, it was held that there is no reason to put a limitation that the benefit of coverable of risk is intended only to those who are in the employment of the owner of the insured vehicle. It was further held that the risk to body or life of a person, who is not a gratuitous passenger, but is under an obligation to travel on the insured vehicle by reason of or in pursuance of the contract of employment is covered by insurance. Position in the instant case is almost the same. Here also, the Mahua belonged to M/s. Jai Ambe Trading Company, who had required the respondent No. 1 to transport the Mahua. The respondent No. 1 was necessarily required to remain present with the Mahua so as to satisfy the Excise Authorities of its lawful transport. Under the circumstances, there is no justification for holding that the risk in respect of respondent No. 1 was not covered.

4. There is yet another reason why the insurance company should be held liable. Rule 111 of M.P. Motor Vehicles Rules, 1974 permits carrying the hirer or the owner of goods in the vehicle under specified circumstances. There is evidence on record to hold that the respondent No. 1 was travelling in the truck because he had hired the same to carry Mahua. Evidence of Moti Singh (P.W.2) would indicate that the respondent No. 1 was travelling in the cabin by the side of the driver. It would, therefore, appear that the driver by the respondent No. 1 was not in contravention of any of the conditions under Rule 111 and was, therefore, legally permissible. Such a person must, therefore, be held to be covered by the insurance policy.

5. The view taken by the Division Bench in Pathribai's case (supra) is also supported by the view taken by Allahabad High Court in Abdul Razak v. Smt. Sharifunnisan and Ors. AIR 1983 Allahabad 400, Channappa Chanavirappa Katti and Anr. v. Laxman Bhimappa Bajantri and Ors. AIR 1979 Karnataka 93 and T.M. Renukappa v. Smt. Fahmida and Ors. AIR 1980 Karnataka 25.

6. The appeal consequently succeeds and is allowed. The appellant and the respondents 2 and 3 are held to be jointly and severally liable to pay the amount of compensation, interest and costs awarded by the Claims Tribunal to the respondent No. 1. The respondent No. 1 shall also be entitled to costs of this appeal. Counsel's fee Rs. 250/-.