Hasem Mohamad Jeva Vs. Shantaben W/O Parvinbhai Vasava - Court Judgment

J.N. Bhatt, J.

1. This group of one appeal and 17 writ petitions arose out of common judgement and also common accident against common opponents. Therefore, upon joint request they are being disposed of by this common judgement. Heard learned counsel for the parties. The theme of this group of 18 matters is as to whether exclusion of respondent No. 5 original opponent No. 3 Insurance Company by the Tribunal from making loss good to the insured under the impugned judgement and awards in favour of the original claimants and against the driver and the owner of the motor truck involved in the accident.

2. With a view to appreciate the sole issue let us have a skeleton projection of material facts giving rise to this group of matters. A motor truck No. GQC 6137 owned by the appellant in appeal and petitioner in other Special Civil Applications original opponent No. 2 driven by one Dherubhai Mansinh Vasava, original opponent No. 1 in all 18 claim petitions was proceedings from village Mokhadi and at about 8.30 p.m. on the date of the accident on 7.6.1988 the driver of the truck lost control of the vehicle and as a result the truck went off the road resulting into serious injuries to one Parvin Jairambhai Vasava who later on succumbed to the same and injuries to various other persons travelling in the truck.

3. 18 Claim petitions came to be filed, out of which one by heirs and legal representatives of the deceased Parvin Jairambhai Vasava and rest by the injured claimants, in the Motor Accident Claims Tribunal (Auxiliary), Bharuch, on the premises that the deceased and the insured persons were travelling in the offending truck at the relevant time as employees - labourers of the appellant original opponent No. 2, owner of the truck and in course of employment the accident occurred and therefore the claimants claimed compensation for the tortious act committed by the driver of the truck from the driver, owner and the insurer. Original opponent Nos. 1 and 2 driver and the insured raised common defence by filing written statement at Exh. 98 whereby they contended that there was no rashness and negligence on the part of the driver and he was not responsible for the accident. However, even if he is held to be responsible for the accident, in view of the insurance policy Exh. 99, the claimants are entitled to recover the amount of compensation from the insurer as the claimants and the deceased were travelling at the relevant time in the offending truck as labourers of the owner of the truck and at the time of accident, they were in course of the employment. In general, a joint defence, in substance, raised by the driver and the owner of the vehicle was that the Insurance Company was liable to indemnify the amount of compensation that may be determined against the driver and the owner of the vehicle.

4. Whereas the original opponent No. 3, Insurance Company appeared and resisted the claim petitions by filing written statement, at Exh. 16, inter - alia, contending that the persons travelling on the day of the accident in the offending truck, were unauthorised passengers - victims of insurance policy at Exh. 99, is not disputed. However, the main dispute propounded on behalf of insurer is that the Insurance Company will not be liable for the payment of compensation or to indemnify the insured as the persons who were travelling in the offending truck at the relevant time were not employees and they were unauthorised persons and therefore, statutorily and contractually the Insurance Company cannot be fastened with the liability for the payment of compensation. The other averments made in the claim petitions were also traversed in the written statement at Exh. 16 of the Insurance Company.

5. The claimant Shantaben, widow of Parvinbhai Vasava - claimant in MACP No. 625 of 1988 was examined at Exh. 54, whereas, rest of the claimants claiming compensation for personal injuries filed their affidavits. The case propounded in the claim petition is sought to be supported by the evidence of Shantaben at Exh. 54 and the affidavits of the injured claimants. On behalf of opponent Nos. 1 and 2 evidence is led of the driver and the owner. FIR lodged in respect of accident was produced at Exh. 22, insurance policy was produced at Exh. 99, R.T.O. permit came to be produced at Exh. 100. Upon appraisal, analysis and assessment of the testimonial and oral evidence, the Tribunal awarded an amount of Rs. 1,34,000/- against the claim amount of Rs. 2,80,000/- in M.A.C.P. No. 625 of 1988 which was a case of fatal injury whereas in case of personal injuries in 17 claim petitions, the Tribunal awarded amounts below Rs. 10,000/- holding that nexus of accident was established with the rashness and negligence on the part of the driver of the offending truck. However, the Tribunal found that in the facts and circumstances of the case, the Insurance Company cannot be held liable as the case of the claimants was that the deceased and the insured persons along with other persons were travelling in the offending truck at the relevant time in capacity of employees and the accident occurred in course of the employment. The Tribunal, therefore, absolved original opponent No. 3 in all 18 petitions and recorded awards in favour of heirs and legal representatives of the deceased Parvin Jairambhai Vasava in the main petition and in favour of the injured claimants against both original opponents driver and the owner. That is how this group of 18 matters out of which one is an appeal under Section 173 and 110D of the old M.V. Act at the instance of original opponent No. 2 owner of the truck insured.

6. We have heard extensively the learned advocate for the appellant and the learned advocates for the respondents. We have, also, dispassionately, examined the evidence documentary as well as oral by calling original records and proceedings.

7. Learned advocate for the appellant has raised the following contentions.

(i) That the Tribunal has committed serious error in absolving the insurer in the entire group holding that the claimants have failed to prove that they were travelling at the relevant time in the offending truck in capacity of employees of original opponent No. 2 owner and insured of the vehicle.

(ii) That the Insurance Company cannot be absolved from the liability of payment of compensation or to indemnify the insured as the persons travelling in the offending truck were allowed by the driver without any notice or permission of the owner and the insured. In such fact situation, third party cannot be allowed to suffer and the Insurance Company is, therefore, bound to indemnify the insured and in support of this contention, reliance has been placed on a decision of the Hon'ble Supreme Court SOHAN LAL PASSI VS. P. SESH REDDY & ORS. reported in 1997(2) G.L.R. 1093.

8. Learned advocate appearing for the original claimants has submitted that the claimants are entitled to recover from all the tortfeasors who are found liable for the payment of compensation. It was submitted on behalf of the claimants that nothing has been paid which is due and payable under the impugned award whereas on behalf of the Insurance Company, the learned advocate has submitted that the impugned judgment and different awards excluded the liability of the Insurance Company.

9. The submissions raised on behalf of the original opponent No. 2 owner-insured are reiterated in course of hearing of this group of matters. He has not been able to convince us that the view taken by the Tribunal and the ultimate conclusion recorded by it is, in any way, wrong, unjustified or unreasonable, requiring our interference exercising our powers under Section 110D of the old Act. The Tribunal, on dispassionately going to the tenor and text of the impugned judgement, has dealt with all the points raised before us in extenso and has concluded that the Insurance Company cannot be held liable in the fact situation emerging from the record of the present case since the original claimants have not been able to succeed in showing that the persons travelling in the offending truck at the relevant time on the day of the accident were employees of the insured owner of the truck. No doubt, repeatedly, our attention was drawn to the evidence of Shantaben, widow of deceased Parvinbhai Vasava, examined at Exh. 54 and the affidavits filed by the injured claimants and also on the common defence and the evidence of original opponent Nos. 1 and 2, driver and the owner of the offending truck, respectively and has been, forcibly, submitted that their evidence to the effect that the claimants along with the deceased Parvinbhai Vasava were travelling in the offending truck at the relevant time as employees of the owner of the truck is, wrongly, rejected on the premise that it conflicted with the version enumerated from the FIR produced at Exh. 22. Prima facie, this submission would appear to be subtle but not sound, alluring but not acceptable when one gets into reality of the factual situation emerging from the record of the present case.

10. Ordinarily, when the claimants and the opponents driver and the owner of the vehicle raise common contentions in absence of any conflicting interest in a summary proceedings like the one on hand, the Tribunal would accept such version. Unfortunately, so is not the factual situation in the present group of matters. The view recorded by the Tribunal that the plea of claimants travelling in the offending truck at the relevant time as passengers propounded, jointly, by the claimants and the driver and the owner of the truck is nothing but an after-thought and innovation, if not manipulation, in the light of other evidence on record cannot, easily be brushed aside. Since there was a permit at Exh. 100 issued by the RTO permitting 20 persons/labourers to travel in the truck, it was sought to be employed, successfully, but is not acceptable and sustained by the Tribunal and in our opinion, rightly, so.

11. It would be quite explicit and evident from the record of the present case that 42 persons were travelling in the offending truck at the relevant time even from the starting point, a village wherefrom the truck commenced its journey on an unfortunate day for going to a place at Valia where a drama was to be performed and that, too, of a celebrated Gujarati Artist, if not hero, Upendra Trivedi. 30 persons were boarded in the truck and before it could reach the venue of accident, it appeared that there were 42 persons in the truck and only 18 persons became claimants, presumably, in view of the RTO permit, Exh. 100, authorising 20 labourers to travel in a truck. Immediately, after the accident which occurred at 8.30 p.m. an FIR came to be lodged within 3 hours which is admitted in evidence upon consensus and produced at Exh. 22, by Shri Kasturbhai Dudarbhai, which runs, diametrically, opposite to the plea raised by the claimants in the claim petition and their evidence . Since the interest of claimants and opponent Nos. 1 and 2 driver and the insured of the vehicle is common and is conflicting with the interest of the insurer, the Tribunal, upon true appraisal of the fact situation emerging from the record of the case, reached the conclusion that the plea of travelling in the offending truck by the claimants at the relevant time in capacity of employees of the owner of the truck is not acceptable and is an after-thought. In our opinion, though we have full sympathy with the victims of the unfortunate road mishap, the conclusion recorded by the Tribunal has remained unassailable. We are satisfied that the Tribunal was right in recording such conclusion and it is justified in the facts of the case.

12. Obviously, that would lead us to the appreciation and examination of the text and the content of the FIR at Exh. 22 wherein quite contrary and conflicting version is recorded as narrated by Kasturbhai Dudarbhai which is produced at Exh. 22 with consent. The Tribunal has also recorded the exact version of FIR in vernacular language i.e. in Gujarati. The substance recorded in the FIR which is reproduced in the impugned common judgement of the Tribunal, may be highlighted as it cuts short the plea of the claimants travelling in the offending truck at the relevant time as employees of the original opponent No. 2, owner and insured of the truck. The substance of the FIR reads as under:-

Since there was a programme of drama of Upendra Trivedi, motor truck driven by Dherubhai Mansinh Vasava, came to our village along with another truck and both the trucks started for going to village valia to accomplish the function witnessing the drama of Upendra Trivedi and tickets had already been purchased. 30 persons had boarded the truck. Some of the names given which are not relevant / material at this juncture. Some of the persons boarded the truck from village Mokhadi and one of them was deceased Parvinbhai Vasava. When the said truck reached close to Navapara around 8.30 p.m. on that day there were about 30 persons travelling in the truck.

13. It leaves no any manner of doubt from the said FIR that all the persons who boarded the truck of the appellant had one mean to attend the drama of Upendra Trivedi at Valia. Had they been, really, labourers of opponent No. 2, the person who lodged the FIR who was one of the passengers travelling in the offending truck, obviously, would have disclosed or narrated this aspect in this FIR. It is in this context, we find that the Tribunal was justified in placing reliance on the FIR which was lodged at the relevant time before a competent authority within 3 hours of the road accident by a person who was one of the passengers and which came to be admitted in evidence with consent. Now in order to dislodge the content and tenor of the FIR on the basis of divergence which is raised on behalf of the claimants and also the driver and the insured of the truck, nothing has been proved or no evidence is led to dislodge it. The contention that it was not necessary since the claimants and the insured and the driver raised a common plea and the contention raised, jointly, by them should have outweighed the contents recorded in the FIR. Ordinarily and prima facie such contention may not be thrown over the board but in a situation like one in a group of cases in hand where it is a conflicting version and conflicting interest, it must be shown, independently, that the persons who suffered injury or victims of road accident as such were travelling in the offending truck at the relevant time as labourers of the owner and insured of the truck, which has not been done. It should have been proved by other reliable evidence, documentary as well as oral. No particulars are furnished as to since how long the claimants were working as labourers with the insured, what was the amount paid as a worker/employee, what was the nature of the job individual worker was expected to do, whether names of the workers were registered with any authority under the Labour Laws when 20 or more persons are engaged by a person for labour work. It should be proved by various documents and other evidences. Nothing has been shown as to why such attempt has not been made. It is in this context, the observation and the ultimate conclusion reached by the Tribunal in rejecting the plea of the claimants and also the insured and the driver cannot be said to be unreasonable requiring our interference. After having taken into consideration the entire testimonial conclusion and evidence of the witnesses, we have no hesitation in finding that the original claimants were travelling in the offending truck of the owner and insured at the relevant time in capacity as employees/labourers and, therefore, they are covered under the insurance policy and the Insurance Company is liable to indemnify the insured is not at all proved and cannot be accepted. Of course, the appellant in First Appeal and the petitioners in rest of the petitions, therefore, must fail on this count.

14. Apart from that, in so far as the relevant proposition of law is concerned, there is one second statutory hurdle which the Tribunal has not gone into, presumably, for the reasons that the appellant in the First Appeal and the petitioners in rest of the petitions failed to clear the first statutory hurdle. Assuming that the claimants were travelling as passengers at the relevant time in the offending truck as employees/labourers of the owner of the truck then also the second hurdle which the insured is required to clear is that at the relevant time when the accident occurred they were travelling not only as labourers but the accident has arisen out of their course of employment and during the course of their employment. If some labourers are going on a picnic or for a personal tour or visit and if it is unconnected with the employment object, even in that case also as per the statutory provision, the Insurance Company cannot be fastened with the liability to indemnify the insured. In short, it is incumbent upon the insured to establish two statutory requirements in order to succeed the plea of indemnification under the policy.

(a) that the persons travelling in the goods vehicle were as such travelling in capacity as employees/labourers

(b) that the accident had arisen out of and in course of the employment.

15. In our opinion, in so far as the first statutory hurdle is concerned, the Tribunal has, rightly, found that it has not been proved that the claimants were travelling at the relevant time in capacity as employees/labourers of the insured and owner of the truck and we find full justification in this conclusion. Alternatively, the second hurdle is, also, not proved that the accident in question occurred out of or in course of any employment. Such question would have arisen for the simple reason that 42 persons were travelling in the offending truck at the relevant time for going to witness a drama of one known Artist Upendra Trivedi in village valia after purchasing tickets and this is borne out substantially and significant by the first version given by one of the passengers before the competent authority in form of FIR and it is, rightly, relied upon by the Tribunal and we find full substance therein and therefore both these hurdles have remained uncontroverted with the result the Insurance Company cannot be fastened with liability to indemnify the insured for the payment of compensation awarded by the Tribunal in all 18 claim petitions. The decision which is relied on and referred to earlier is not attracted to the facts of the present case. Therefore, the learned advocate for the appellant and the petitioners in this group of 18 matters, is not in a position to make any capital out of it, as such, it is nothing but an attempt to catch a straw by a drowning man. In our opinion, this group of 18 matters is required to be dismissed. Accordingly, they are dismissed without any order of costs.

16. Lastly, before parting we would like to direct to deposit full amount as per the impugned common judgement and award since it has been submitted before us that the original claimants- respondents before us have not been paid due and payable amount under the impugned common judgement and different awards, to the appellant and other petitioners. The amount of Rs. 25,000/- deposited along with the appeal under Section 173 of the Motor Vehicles Act shall be transmitted by the Tribunal forthwith for being disbursed to the claimants in terms of the conditions incorporated in the impugned order.

In view of the common judgement passed in this group of matters, no orders are passed on the Civil Application.