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Gopibai Ghanshamdas Advani and ors. Vs. Food Corporation of India and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMumbai High Court
Decided On
Case NumberFirst Appeal Nos. 82 and 110 of 1982
Judge
Reported inAIR1983Bom137; 1983(1)BomCR216; (1982)84BOMLR558; 1983MhLJ53
ActsMotor Vehicles Act, 1939 - Sections 95(1), 116
AppellantGopibai Ghanshamdas Advani and ors.
RespondentFood Corporation of India and ors.
Appellant AdvocateN.H. Gursahani,;P.H. Puri and;H.D. Rajani, Advs.
Respondent AdvocateH.G. Advani,;I.D. Bhojwani and;A.K. Chaphekar, Advs.
Excerpt:
.....of contract of employment.;the use of the word 'passenger' in proviso (ii) to section 95(1) of the motor vehicles act, 1939, creates an impression that the vehicle must be a transport vehicle or a stage carriage vehicle, and the person travelling in it must be a passenger who has purchased a ticket for his travel. however, this is a wrong impression. ;the second part of the clause of proviso (ii) to section 95(1) namely 'when the vehicle is a vehicle in which passengers are carried by reason of or in pursuance of a contract of employment' can have meaning only if we interpret the term 'passenger' to mean not as a passenger in a bus service but as a person who is seeking passage in the vehicle. this clause contemplates that the vehicle must be one in which a person is carried by reason of..........insurance company. bombay, under a policy which is required to be taken out under s. 95 of the motor vehicles act. the claimants therefore claim that the amount of compensation should also be made payable by the said insurance company.4. the said claim was opposed by the corporation, the driver and also by the insurance company. the motor accidents claims tribunal after recording evidence that was led before it came to the conclusion that ghanshamdas met his death on account of rash and negligent driving by driver more. the learned district judge and ex-officio member of the said tribunal determined the compensation at rs. 34,400. the tribunal however came to the conclusion that this amount was payable only by the corporation and the driver more and that the insurance company is not.....
Judgment:

Gadgil, J.

1. These two appeals arise from an order of the Motor Accidents Claims Tribunal, Ahmednagar in Miscellaneous Application No. 29 of 1979 whereunder an amount of Rs. 34,400 has been directed to be paid to the appellants by opponents Nos. 1 and 2 with future interest at a certain rate. The original appellants (hereinafter referred to a 'the claimants') have filed First Appeal No. 82 of 1982 claiming additional amount of Rs. 80,000. They have also claimed that the amount of compensation should be made recoverable from the New India Insurance Company. Bombay, original opponent No. 3. The other Appeal No. 110 of the 1982 is filed by the Food Corporation of India, Bombay and its driver Shri P. High. More (original opponent No. 2) challenging the Motor Accidents Claims Tribunal, Ahmednagar.

2. Before the hearing of these appeals began, Mr. Rajani, the learned Advocate appearing for the application in First Appeal No. 82 of 1982 made a statement that the appellants documents not intend to prosecute this appeal. Hence, the arguments were heard only with respect to Appeal No. 110 of 1982. Mr. Rajani has today filed a Purshis reiterating the position about the withdrawal of this appeal. Hence, First Appeal No. 82 of 1982 is disposed of as withdrawn.

3. There does not appear to be much dispute as to how Ghanshamdas (the husband of claimant No. 1 and father of claimants Nos. 2 and 3) met his death on 29th Aug., 1979. Deceased Ghanshamdas was working as an Assistant manager with the Food Corporation of India (hereinafter referred to as 'the Corporation). and at the relevant time was posted and was working emoluments of Rs. 1,510 per month on the date of the incident. On 29th Aug., 1979 Ghanshamdas accompanied by his superior officers, namely, the Deputy Manager Karnik and certain other officer such as Asstt. Manager Shri. Guneshwar, watchman Shri Hagvane, coolie Shri Pawar proceeded from Manmad to Shri rampur in an Ambassador car bearing No. MRH 4969 belonging to the Corporation. The car was being driven by Shri P. H. More, the driver of the Corporation. In due course, the party reached Shrirampur at about 2-30 p.m. or so and after doing their official duties there, the party left in the said car No. MRH 4969 for returning to Manmad. At about 7-30 p.m. the car came across a Nallah known as 'Mandapur Nallah' on the way. There were heavy rains and it was not possible to cross that Nallah as the guard stones were not visible. The party waited at the bank of the Nallah for about two hours. However, there was no possibility of the water in the Nallah receding. Some other cars which were also stranded proceeded towards Manmad by a Kaccha road which was passing by the side of the canal. Driver More started driving the vehicle by that Kaccha road. After travelling the distance of 8 or 9 kilometres, the car fell in the canal.. Shri Karnik, Shri Guneshwar, Pawar and driver More were able to rescue themselves. Deceased Ghanshamdas was taken out of the canal. However, he died on account of drowning. Similarly. the watchman Hagvane also died.

3--A. The case of the claimants is that the car fell in the canal on account of the rash and negligent driving by More and that therefore, the claimants are entitled to claim compensation against the Corporation and the driver. The car was insured with opponent No. 3 --- The New India Insurance Company. Bombay, under a policy which is required to be taken out under S. 95 of the Motor Vehicles Act. The claimants therefore claim that the amount of compensation should also be made payable by the said Insurance Company.

4. The said claim was opposed by the Corporation, the driver and also by the Insurance Company. The Motor Accidents Claims Tribunal after recording evidence that was led before it came to the conclusion that Ghanshamdas met his death on account of rash and negligent driving by driver More. The learned District Judge and Ex-Officio Member of the said Tribunal determined the compensation at Rs. 34,400. The Tribunal however came to the conclusion that this amount was payable only by the Corporation and the driver More and that the Insurance company is not liable to make that payment.

5. As stated earlier, the claimants had preferred an appeal praying for enhancement of the compensation and also for a direction that the compensation should be made payable by the Insurance Company. The contentions in this appeal however documents not survive now. The appeal has to be disposed of as withdrawn.

6. The main contention of Mr. Advani for the Corporation is twofold. According to him, there was neither rashness nor negligence on the part of driver More when the mishap took place and that therefore, the Corporation and its driver would not be liable to pay any compensation to the claimants. His another contention is that in case such a liability arises against the Corporation the Insurance Company is liable to make the payment in view of the policy that was taken out by the Corporation under S. 95 of the Motor Vehicles Act.

7. It is true that the claimants have not been able to examine any person who had actually seen as to how the car fell in the canal. However, such evidence is not always necessary and many a time that type of evidence may not be available. The motor Accidents Claims Tribunal has relied upon the principle of res ipsa loquitur for the purpose of deciding as to whether the circumstances are such that rashness and negligence on the part of the driver can be conclusively inferred. It is in evidence that it was a dark night and there were no lights on the kaccha road. Driver More has admitted that when he started driving the vehicle on the kaccha road by the side of the canal, the car was wobbling and that it was taking turns. Even then he continued to drive the vehicle. it is material to note that the road was itself a kaccha one and was passing by the side of the canal. The very fact that the car was wobbling and taking turns would indicate that the driver could have taken the decision not to proceed further. However he did go ahead and in that process the unfortunate incident of the fall of the car in the canal took place. In our opinion the circumstances are so eloquent that rashness and negligence on the part of the driver require to be deduced and it will not be open for Mr. Advani to contend that those circumstances should be brushed aside simply because the claimants are not able to lead evidence of an independent witness. In our opinion, the learned District Judge and Ex-Officio Member of the Motor Accidents Claims Tribunal, Ahmednagar has rightly recorded a finding that Ghanshamdas met his death on account of the rash and negligent driving of driver More.

8. The learned District Judge and Ex-Officio Member of the M.A.C. Tribunal. Ahmednagar has worked out the compensation at the figure of Rs. 34,400 and Mr. Advani frankly stated before us that the Corporation does not intend to challenge the quantum of compensation in case this Court comes to the conclusion that the claimants are entitled to any compensation.

9. We have already observed that the Motor Accidents Claims Tribunal, Ahmednagar has refused to pass any order directing the Insurance Company to make payment of the compensation amount to the claimants. Mr. Advani for the Corporation contended that the Corporation is bound to make the payment and as against this, Mr. Chaphekar who appears for the Insurance Company was argued that there is no such liability on the Company under S. 95 of the Motor Vehicles Act. It is therefore necessary to consider the provisions of S. 95 of the Motor Vehicles Act for the purpose of deciding as to whether the Insurance Company is liable.

9--A. Chapter VIII of the Motor Vehicles Act has made certain provisions regarding the necessity of the insurance of motor vehicles against third part risk. S. 94 makes it mandatory to have such insurance while S. 95 provides as to what risk the insurance policy should cover and what would be the limit of the liability of the Insurance Company. S. 95 (1) (a) and (b) states that there must be an insurance policy which insures certain persons and classes of persons and the limit of that insurance is as mentioned in sub-section (2) of S. 95. Amongst other things, it is necessary that the policy must insure against any liability which may be incurred by the insured in respect of the death of, or bodily injury to any person or damage to any property of a third person caused by or arising out of the use of the vehicle in a public place. There are, however two provisos to this sub-section (1) of S. 95. For deciding the present controversy, the second proviso is material and it reads as follows:--

'Provided that a policy shall not ................. be required ---

(i) ................: 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 a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or

(iii) ................'

Sub-section (2) of S. 95 limits the liability of the Insurance Company and, as far as the present appeal is concerned. the material portion of that sub-section (2) of S. 95 can be reproduced as follows:---

'(2). Subject to the proviso to sub-section (1). a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:---

(a) .........................

(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment----

(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all:

(ii) in respect of passengers..... ........' Mr. Advani contended that a plain reading of proviso (ii) to sub-section (1) would show that the insurance policy must cover the liability where the vehicle is a vehicle in which passengers are carried for hire or reward, or by reason of or in pursuance of a contract of employment. In the present case we are not concerned with the liability with respect to passengers carried for hire or reward. Here, the deceased Ghanshamdas was am employee of the Corporation and the contention of Mr. Advani is that deceased Ghanshamdas was thus travelling in a vehicle by reason of or in pursuance of a contract of employment. It is not in dispute that deceased Ghanshamdas was posed at Manmad and that he along with other officers of the Corporation ahd gone to Shrirampur on official duty and they were returning back after performing that duty. The use of the word 'passenger' in proviso (ii) creates an impression that the vehicle must be a transport vehicle or a stage carriage vehicle, and the person travelling in it must be a passenger who has purchased a ticket for his travel. However, this is a wrong impression. We may with advantage refer to the following meaning given to that term in the New Webster's English Dictionary:--

'pas-sen-ger, pas'en'jer, n. (O E. passenger, one who makes a passage: them being an intrusive element. as in messenger.) One who travels on a plane, ship railroad, bus taxi or other conveyance: a wayfarer or traveller; as, a foot passenger.' (The letter and words underlined are in italics.)

To understand the exact meaning of the relevant clause of proviso (ii), we would like to reproduce that clause in two separate parts:---

'(i) where the vehicle is a vehicle in which passengers are carried for hire or reward. and

(ii) where the vehicle is a vehicle in which passengers are carried by reason of or in pursuance of a contract of employment'.

The second part of the clause mentioned above can have the correct meaning only if we interpret the term 'passenger' to mean not as a passenger in a bus service but as a person who is seeking passage in the vehicle. Otherwise, it will not be possible to give any rational meaning to this clause. One would not be able to imagine a case where a passenger in a bus service is carried by reason of or in pursuance of a contract of employment, Thus, the second part of the clause would never be applicable if the term 'passenger' is construed to mean a passenger in such a bus service. If he is a passenger in such a bus service. be cannot be carried by reason of or in pursuance of a contract of employment. It would thus be clear that the relevant clause under proviso 2 only contemplates that the vehicle must be one in which a person is carried by reason of or in pursuance of a contract of employment. Certain other High Courts had an occasion to consider that meaning of this clause of proviso (ii). In the case of Channappa Chenavirappa Katti v. Laxman Bhimappa Bajantri, reported in : AIR1979Kant93 , the facts were that a goods vehicle met with an accident on account of rash and negligent driving of the driver. One Somappa who was the owner of the goods was in the vehicle while Balappa who was working as a cleaner was also there. Both of them died in that accident. The vehicle was insured in order to comply with the provisions of S. 95 of the Motor Vehicles Act. The question arose as to whether the legal representatives of Balappa were entitled to claim compensation from the Insurance Company. The Karnataka High Court has held that the word 'passenger' used in the relevant clause of the second proviso should not necessarily pertain to a passenger in a public service vehicle. A finding was, therefore, recorded that the cleaner who was an employee of the owner of the vehicle was covered by the relevant clause. The Madras High Court has considered the provisions of S. 95 of the Motor Vehicles Act in a somewhat different context in the case of Vanguard Insurance Co. Ltd., Madras v. Chinnammal, reported in : AIR1970Mad236 . It was also a case of a goods vehicle. The goods of someone else were being transported by the owner of the vehicle and an employee of the owner of the goods was travelling in the said vehicle. The Madras High Court has held that though the said employee was not of the owner of the vehicle, as he was the employee of the owner of the goods, still he was a passenger in the goods vehicle by reason of or in pursuance of a contract of employment. Thus, the term 'by reason of or in pursuance of contract of employment' has been construed to mean that such relationship of employment would not be necessary between the insured and the injured person. The Supreme Court had an occasion to consider the provisions of S. 95 of the Motor Vehicles Act in the case of Pushpabai Parshottam Udeshi v. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. reported in : [1977]3SCR372 . In that case the driver of the car gave a gratuitous lift to a person who ultimately met his death in an accident which was caused on account of rash and negligent driving. The Supreme Court came to the conclusion that the dependants of the person (who was given a lift) would not be able to claim compensation from the Insurance Company as their case does not fall under any of the provisions of S. 95 of the Motor Vehicles Act. However, the insurance policy has covered the risk of such a person and the relevant clause reads as follows:--

'In consideration of the payment of an additional premium it is hereby understood and agreed that the company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger ..................'While construing this clause, the Supreme Court held that a person who was given a lift in the car would be a passenger as contemplated by this clause and the Insurance Company would be liable to pay the compensation to the dependants of the deceased not under S. 95 of the Motor Vehicles Act but in accordance with the provisions of the insurance policy. Thus, the term 'passenger' as used in the insurance policy has been interpreted by the Supreme Court to include even a person who is given a lift. It would not be necessary to construe the term 'passenger' to mean that the person must be a passenger in any passenger service or stage carriage vehicle.

10. The above discussion would, therefore. show that the Insurance Company would be liable if deceased Ghanshamdas was being carried in the car by reason of or in pursuance of a contract of employment. We have already observed that deceased Ghanshamdas accompanied by the other officers of the Corporation had gone to Shrirampur on official duty and was returning back after performing such duty. Obviously, it will not be possible for the Insurance Company to contend that Ghanshamdas was not being carried in the car by reason of or in pursuance of a contract of employment with the Corporation.

11. Mr. Chaphekar, however, contended that simply because on that particular day. deceased Ghanshamdas as so carried in the car would not necessarily fasten any liability on the Insurance Company unless there is evidence to show that the car No. MRH 4969 was habitually used for carrying persons by reason of or in pursuance of a contract of employment. He drew our attention to a decision of the King's Bench in the case of Izzard v. Universal Insurance Co. Ltd. reported in (1937) 3 All ER 79. Section 36 of the Road Traffic Act and the relevant clause in proviso (ii) of Section 95 of the Motor Vehicles Act are practically similar. In that case the owner of a motor car took the plaintiff to London and received certain amount as hire. On the way the car met with an accident on account of rashness and negligence of the driver. The car was insured under the provisions of Section 36 of the Road Traffic Act. The question arose as to whether the Insurance Company was bound to pay the compensation under the insurance policy. It was held that with a view that the vehicle should be a vehicle in which passengers are carried for hire or reward, it is necessary that the vehicle should normally and habitually be used in that way and that an isolated occasion of carrying a passenger for hire or reward would not make that vehicle of a type needed to be covered by the insurance policy. Shri Chaphekar also relied upon the commentary from the book. 'Shawcross on Motor Insurance, II Edition'. In that commentary the abovementioned case of Izzard v. Universal Insurance Co. Ltd. has been discussed and it has been observed that the vehicle should be habitually used for the purpose as contemplated by the relevant clause of carrying passengers for hire on reward. On Page 208, the commentary reads as follows :--

'As to the point whether the vehicles in which passengers are carried in pursuance of or by reason of a contract of employment are confined to those used habitually for such purposes, it is noticeable that in both Izzard's case and the case of Baker v. Provident Accident and White Cross Insurance Co. Ltd. (1939) 2 All ER 690 the vehicles were in fact habitually used in such a manner. The point was not taken in either case, but it is submitted that on the authority of Wyatt v. Guildhall Insurance Co. Ltd. (1937) 1 All ER 792 habitual user of this nature must be proved in order that the claim may succeed.

12. In our opinion, in the present case it is not necessary to decide as to whether the vehicle should be habitually used for carrying passengers by reason of or in pursuance of a contract of employment as suggested by Mr. Chaphekar. We do not propose to express any opinion on this requirement as, in our opinion, even if the contention of Mr. Chaphekar is accepted, there is abundant material to hold that deceased Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment. In the first place, it is material to note that the Insurance Company has not raised any specific plea that the vehicle in question was not so habitually used.

Apart from that, the written statement filed by the Insurance Company makes the position clear, In para 2, the Insurance Company has pleaded as follows :--

'The insurers further say and submit that at all material times, the deceased was being carried in the aforesaid vehicle in pursuance of his contract of employment with the Opposite Party No. 2 and his death arose out of and in the course of his employment with the said opposite party.'

In our opinion, this statement constitutes an admission that Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment.

13. There is one more aspect which cannot be forgotten. In the present case the owner of the vehicle. namely, the Food Corporation of India is a statutory Corporation. This Corporation has its headquarters at Delhi and at Manmad there is a sort of branch office or sub-office. It is at this branch office that the Ambassador car No. MRH 4969 was kept for the office use and for obvious reasons the said car can or should be used only by the employees of the Food Corporation of India and that too by reason of or in pursuance of their contract of employment with the Corporation. In view of these circumstances we do not think that there is any substance in the contention of the Insurance Company that the vehicle was not habitually used for the purpose that is needed under the relevant clause of the second proviso of S. 95 of the Motor Vehicles Act. The Insurance Company would therefore, be equally liable to pay the compensation that has been awarded by the Motor Accidents Claims Tribunal and to that extent the order of the Tribunal needs to be modified. Hence, we pass the following order :--

ORDER

First Appeal No. 82 of 1982 is allowed to be withdrawn and disposed of accordingly. The Appellants in this appeal will be entitled to the refund of the court-fees as permissible under the law.

2. First Appeal No. 110 of 1982 is partly allowed and in place of the order passed by the Motor Accidents Claims Tribunal, Ahmednagar, the following order is substituted :--'Original Opponents Nos. 1 and 2, namely, The Food Coporation of India, Bombay and Shri P. High. More should pay to the original Claimants the amount of Rs. 34,400/- with future interest at the rate of six per cent per annum from 30th July 1981 till payment together with costs of the Trial Court and interest on Rupees 34,400/- at six per cent per annum from 30th July, 1981 as laid down by Section 96 of the Motor Vehicles Act. The Original Opponent No. 4, namely, the New India Insurance Company, Bombay, shall pay to original opponents Nos. 1 and 2 the costs of this Court as also of the trial Court, Respondents Nos. 1, 2 and 3 shall bear their own costs of this Court. The amount deposited by the Appellants in this Court towards the satisfaction of this claim should be paid by the Registrar, High Court, Appellate Side, Bombay, to the original Claimants after encashing the fixed deposit receipt.'

14. Ordered accordingly.


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