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Pandurang Chimaji Agale and anr. Vs. New India Life Insurance Company and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported in2(1986)ACC75
AppellantPandurang Chimaji Agale and anr.
RespondentNew India Life Insurance Company and ors.
Excerpt:
.....so as to further the objects of the act. ? 13. it is, thus, obvious that even the definition like 'public place' will have to be understood in the context of the statute and given the interpretation which will subserve rather than defeat the purposes of the provisions. it is not enough to go by mere grammar of the term, like 'public place'.a plain reading of the definition, in the context of the law shows that it is intended to have a wider meaning and does not necessarily restrict to the places which are not private negatively but belong to the general public at large. what it states is 'to which the public have a right of access'.in other words, it is enough if it is shown that to a given property, like the road, street, was or other place, whether a thoroughfare or not, the public had..........those proceedings, the insurance company took the plea that the accident did not take place in 'a public place' and as such it was not liable. by the award under appeal, the tribunal found that the accident did occur due to negligence of the driver, but the deceased pradeep contributed to it. the tribunal quantified the amount of compensation at rs. 1, 00,000/- with interest at 9% per annum from the date of the application till realisation. that amount is made payable by the appellants and the insurance company is absolved upon holding that the place where the accident took place was not 'a public place' as defined under section 2(24) of the act. this finding is recorded notwithstanding that the place is 'a road' that admits vehicular traffic.2. the telco and its driver have filed this.....
Judgment:

Masodkar, J.

1. In an accident that occurred on February 27, 1981 in front of a computer block within the premises of Telco factory (Tata Engineering and Locomotive Company Limited), Pradeep alias Pradyumna Fulshankar Kapta received injuries and he eventually died. His widow Kalpana and daughter Namrata filed proceedings under Section 110A of the Motor Vehicles Act, 1939 (hereinafter called 'the Act') against the driver of the truck bearing No. MHE 144-E, the owner of the vehicle, namely, Tata Engineering and Locomotive Company Limited, and the insurance Company, namely, New India Assurance Company Limited. The those proceedings, the Insurance Company took the plea that the accident did not take place in 'a public place' and as such it was not liable. By the award under appeal, the Tribunal found that the accident did occur due to negligence of the driver, but the deceased Pradeep contributed to it. The Tribunal quantified the amount of compensation at Rs. 1, 00,000/- with interest at 9% per annum from the date of the application till realisation. That amount is made payable by the appellants and the Insurance Company is absolved upon holding that the place where the accident took place was not 'a public place' as defined under Section 2(24) of the Act. This finding is recorded notwithstanding that the place is 'a road' that admits vehicular traffic.

2. The Telco and its driver have filed this appeal restricting it to the legal question concerning the liability of the Insurance Company. In other words, other questions are not in issue.

3. After hearing the learned Counsel for both sides for a considerable time and looking to the general importance of the question in the present appeal, we have come to the conclusion that the papers of this First Appeal be placed before the Hon'ble Chief Justice for constituting a larger Bench for deciding the question.

4. Now, we proceed to give our brief reasons for making this order.

5. As far as the place where the accident took place is concerned, the finding is rightly recorded, in that the truck bearing No. MHE 144-E, was being driven on the road and the accident did occur on that road, within the factory premises in front of the computer block. The factory premises are themselves a large area and several roads for vehicular traffic have been laid and vehicles ply over them. The traffic enters by the gate which has security staff of the Company. The testimony of Pandurang Agale (Witness No. 1 for the Opponents), the driver of the Telco, is to the effect that the places called 'Transmission Division Shop' and 'Engineering Research Centre' within the factory premises are joined by the roads. Road is a wide one on which two vehicles can pass. According to him, he himself was proceeding towards the Research Centre. There is a traffic island for going towards right leading to the Centre. It is at the place of that traffic island that the accident took place. He has further stated that there is an arrangement for 'U' turn, though generally 'U' turns are not taken. The distance between the Transmission Depot and the Research Centre is about 3 kms. In the cross-examination, the driver has admitted that there is an intersection of two roads near the computer building. Sharadkumar Wadekar (Witness No. 2 for the Opponents), the Senior Security Officer of the Company, appellant No. 2 herein, has stated that the width of the road at the place of the accident is 45 metres with a road divider in the centre. There is a traffic island near the place of the accident. According to him further, the building of the Computer Division is on the left side of the road. The exit of the 'D' and 'E' blocks is on the main road and blocks, 'C' and 'D' are huge buildings with workshops. After joining the main road from the 'D' block, one has to cover the distance of about 80 metres for reaching the traffic island. He has stated that suppliers, contractors and visitors are required to reach the various blocks of the factory premises by the main road in connection with the business. For going to the various bullocks from the main gate of the factory, one is required to travel a distance o about 1-1/2 to 2 kms. by the main road or other roads, Permission is required for going to the various blocks. Various modes of conveyance, like cars, auto rickshaws, scooters, mopeds, and other vehicles, are used for reaching the various units. About 500 to 600 parties visit the factory .everyday and about 100 vehicles ply over the roads. He has admitted in the cross-examination that the factory premises are enclosed by compound walls and that visitors are given passes at the entrance. A person can enter the premises, but the security department is entitled to check the passes at the main gate. The entire factory premises, including the main road, belong to the Telco Company which maintains the road.

6. All this clearly shows that the place of the accident is the road and that is accessible through the main gate. The property belongs to the Company and so also the road. It is available for user of the vehicular traffic that comes by the main gate. For security reasons, passes are issued. Looking to the character of this type of evidence, we are of the view that the road laid out within the premises of the Company, appellant No. 2, is a private road, but its user is available to the public and the vehicular traffic does enter by the main gate.

7. Having found so, the question is, would such a road be a 'public place' within the meaning of Section 2(24) of the Act?

8. That provision of Section 2(24) of the Act, which is the denning section, reads as under:

'public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage ;

In the body of the Act, at several places, the term 'public place' occurs. Chapter VIII of the Act has its own defining section, but it does not refer separately to 'public place' Section 95 of the Act, which concerns its if with the provisions regarding insurance, does use the term 'public place'.

9. It appears from the judgments cited at the Bar that the definition of 'public place', as is available in Section 2(24) of the Act, has been read in Chapter VIII of the Act for the purpose of finding out the liability of the Insurance Company.

10. We were taken through various judgments of different High Courts by the learned Counsel and it appears from the decisions reported in the cases of L.I.C. v. Karthyani : AIR1976Ori21 , Rajanmulv. Assobijated Transport Co. 1970 ACJ Madras 44, Martgalamma v. Express Newspapers Ltd. : AIR1982Mad223 , Oriental F. and G. Insurance-Co. v. Rabari G. Punla : AIR1981Guj200 , Madarsab Saheblah v. Nagappa Vittappa : AIR1981Kant117 and Taxi Drivers Union v. Kerala State Road Transport Corpn. : AIR1983Ker69 that the term 'public place', as is defined in Section 2(24) of the Act, has been understood to indicate the place where public have access as of right. It is significant to observe that these judgments tend to indicate that unless the public have such an entitlement to the road, way or street, etc., the place would not be a 'public place'. As a corollary, once it: is shown that the public had no such entitlement, the place would be out of the definition and as such insurance liability would not arise.

11. However, in the case of L. Sarmma v. Rajendra Singh : AIR1984AP32 different view is taken and it has been indicated that it is enough if it is shown that the public had, in fact, access to the property, like a road, street, way or a thoroughfare, as is described in Section 2(24) of the Act, The interpretation was put forth so as to further the objects of the Act.

12. We have been taken through other decisions under the provisions of the Bombay Prevention of Gambling Act with regard to the undertaking of the term 'public place' used therein. We must make it clear that those decisions would not be determinative of the issue before us, but nonetheless throws light on the contemplation of the statutory term as is used by the legislature. A Division Bench of this Court in the case of Mangubhai v. Emperor AIR 1930 Bom, 369 gave a wider scope to such a term. That decision was followed in the case of State v. Dohana Jamnadas : AIR1961Guj182 . The enlarged meaning is also given in the case of State v. Cherian Secariah AIR 1967 Ker.?

13. It is, thus, obvious that even the definition like 'public place' will have to be understood in the context of the statute and given the interpretation which will subserve rather than defeat the purposes of the provisions. It is not enough to go by mere grammar of the term, like 'public place'. A plain reading of the definition, in the context of the law shows that it is intended to have a wider meaning and does not necessarily restrict to the places which are not private negatively but belong to the general public at large. The definition itself is in two parts, one describing the property which is intended to be covered by the term 'public place' and the other describing its user. There is no dispute with regard to the first' aspect in the present case because the accident did occur on a road. Debate is raised with regard to the second aspect, in that the public should have inherent entitlement to have such an access. In other words, if the access is by invitation, permissive or regulated otherwise, it is submitted that that makes a difference and the place does not remain 'a public place'. That appears to be the view taken by the High Courts, excepting the Andhra Pradesh High Court, in the decisions mentioned above.

14. With respect, we find that the plain language of Section 2(24) of the Act is not susceptible to such a reading only, particularly, when that definition has to be read in Chapter VIII of the Act, which requires to provide an insurance guarantee securing the payment of compensation arising out of accident claims. In other words, this approach restricts the insurance guarantee to. the places of a given description wherein public have, as of right, entitlement of user or of entry. In all other cases, the insurance guarantee is not available. That would really be defeating the provisions of Chapter VIII of the Act, which are enacted in public interest, requiring the vehicles to be insured and providing for compulsory insurance cover against accident claims

15. Keeping the objects and purposes of Chapter VIII of the Act in view if we approach the definition of 'public place', it would appear that the definition does not refer to the roads, streets, ways or other places, whether thoroughfare or not, to which the public have, as of right, a right of access. What it states is 'to which the public have a right of access'. In other words, it is enough if it is shown that to a given property, like the road, street, was or other place, whether a thoroughfare or not, the public had a right of access. Now, undoubtedly, the word 'public' is intended to indicate the indeterminate class of people juxtaposed to determinate private body of persons, but to read further, the requirement 'as of right' is to add something more to the terms of the section. Further, what it indicates is that even a private road where indeterminate body of persons have a right of access would partake the character of 'public place' for the purpose of the Act. How the right of access comes in favors of the indeterminate body of persons is not relevant, but the fact that such a body of persons does have a right of access is relevant. The emphasis is on the character of the property which is accessible to the public and not the entitlement of the public. The terms 'other place, whether a thoroughfare or not', which occur in the first part of the definition, are indicative that even a private property to which the public have a right of access, either regulated, permissive or by invitation, would, for the purposes of the Act, be the 'public place'. It is inconceivable that the guarantee of insurance would not be available although by reason of the accident, the liability of the owner of the vehicle as well as that of the driver would arise under the Act. The guarantee is intended to cover the accident claims arising out of the use of motor vehicles, and we are not impressed by the submission that such a guarantee should not be available unless it is shown that the public had, as of right, the entitlement to use a particular property.

16. We would thus have respectfully differed from the view taken by the majority of the High Courts and would have taken a view somewhat similar, but for different reasons, with the view taken by the Andhra Pradesh High Court. However, looking to general importance of the question, which is likely to arise before different Courts in several matters, we thought it fit to make this reference to a larger Bench.

17. It may be mentioned that our attention was invited to a Division Bench decision of this Court in the case of Oriental Fire and Gen. Ins. Co. Ltd. v. Suman Navnath Rajguru 1985 ACJ 243 but we find that decision does not consider the issue of 'public place' as such. The ratio of that judgment turns on the user of the 'public place' and is of no assistance to us.

18. Looking to general importance of the question, we direct that the papers be placed before the Hoh'ble Chief Justice for referring the matter to a larger Bench.

19. In our view, the following question arises for determination by the larger Bench.

Whether a private road or a private place to which the public have a permissive access would be the 'public place' within the meaning of Section 2(24) as well as used in Section 95 of the Motor Vehicles Act, 1939.

20. It is needless to state that upon decision of this question, the entire appeal would stand decided. If the question is decided in favour of the appellants, respondent No. 1--Insurance Company would be liable. Otherwise, the order under appeal will stand affirmed.

21. Because of this reference order as the matter is likely to take some time for the conclusion, we direct that not of the amount in deposit with the Tribunal, an amount of Rs. 80,000/- be permitted to be withdrawn by the widow of the deceased by name Kalpana Kepta and the balance be invested to the National Savings Certificates for the benefit of the minors for a period of 12 years. The parties are at liberty to apply. Additional Paper Books be filed within two weeks.


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