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Hanuman Transport Co. Pvt. Ltd., Udipi Vs. Ruby General Insurance Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal Nos. 678 to 681 with cross-objections 682 to 684 of 1971
Judge
Reported inAIR1973Kant335; AIR1973Mys335; ILR1973KAR351
ActsMotor Vehicles Act, 1939 - Sections 96 and 110D; Code of Civil Procedure (CPC) - Order 41, Rule 22
AppellantHanuman Transport Co. Pvt. Ltd., Udipi
RespondentRuby General Insurance Co. Ltd. and ors.
Appellant AdvocateT.S. Pai, Adv.
Respondent AdvocateM.L. Dayanandakumar and ;P. Ganapathy Bhat, Advs.
DispositionAppeal partly allowed
Excerpt:
.....is granted. it is clearly seen that in spite of breach of such a condition, the permit remained valid end the bus could continue to ply on the route mentioned in the permit under the same said permit......owner is liable to pay compensation to the respective claimants as directed in the said award.2. stage carriage bearing registration no. myx 6990 was granted a stage carriage permit as per the provisions of the motor vehicles act. 1939, (to be hereinafter referred to as the act). that (permit is available on record at ex. r-3. as per the terms of this permit the vehicle was to ply according to the timings mentioned in the permit from udipi to hoode and back viz. santhekatte and kemmannu, from udipi to innanje and back, and from udipi to alevoor and back. the permit was to expire on 11-12-1970. the case of the claimants was that there was a marriage in kemmannu and therefore, one nicholas bardoza hired this bus and the marriage party consisting of about 50 persons left pillarkhan for.....
Judgment:

Nesargi, J.

1. All these appeals are filed by the owner of a stage carriage bearing registration No. MYX 6990 against the award passed by the Motor Accidents Claims Tribunal and District Judge. South Kanara, Mangalore holding that the owner is liable to pay compensation to the respective claimants as directed in the said award.

2. Stage carriage bearing registration No. MYX 6990 was granted a stage carriage permit as per the provisions of the Motor Vehicles Act. 1939, (to be hereinafter referred to as the Act). That (permit is available on record at Ex. R-3. As per the terms of this permit the vehicle was to ply according to the timings mentioned in the permit from Udipi to Hoode and back viz. Santhekatte and Kemmannu, from Udipi to Innanje and back, and from Udipi to Alevoor and back. The permit was to expire on 11-12-1970. The case of the claimants was that there was a marriage in Kemmannu and therefore, one Nicholas Bardoza hired this bus and the marriage party consisting of about 50 persons left Pillarkhan for Kemmannu in the morning of 27-2-1968. After attending the marriage, the party proceeded back in the same bus from Kemmannu to Pillarkhan. After the bus deviated at Shankarapura from its route sanctioned in the permit Ex. R-3, towards Pillarkhan it met with an accident because the driver of the bus was at that time driving it rashly and negligently. Three persons expired and some persons sustained injuries.

3. Many claim petitions by the injured and the persons entitled to compensation in view of the death of three persons were filed under Section 110-A if the Act. The owner and the insurer contended that the bus was not driven rashly and negligently. The owner-appellant also contended that as it had been insured with one of the respondents-insurer, the insurer was in any view of the matter, liable to pay compensation to the extent the law made him liable. The insurer contended that the bus was plying in the part of the route as a contract carriage contrary to the stage carriage permit granted to the owner, and therefore, the insurer was not liable to pay compensation to any extent.

4. Sri Tukaram S. Pai the learned Advocate appearing on behalf of the appellant owner in all these appeals, put forward only one contention before us. He did not contend in regard to the issue whether the driver of the bus was driving the bus rashly and negligently and the issue dealing with quantum of compensation. His contention is that the Tribunal below was wrong in not making the insurer liable at least to the extent of Rs. 20,000 on the whole, subject to a maximum of Rs. 4,000/- in regard to each claim as provided in law. He pointed out that the evidence on record was not sufficient to warrant the conclusion of the Tribunal that at that point of time the bus was being plied as a contract carriage.

5. P.Ws. 1, 5, 12 and 13 are the witnesses who have sworn to this aspect of the matter, Ex. R-2 is a counter-foil of a ticket issued in regard to 55 passengers. P.Ws. 1, 5, 12 and 13 have sworn that this bus transported the marriage party from Pillarkhan to Kemmannu in the morning of that day and was transporting the same party from Kemmannu to Pillarkhan in the evening and during that period it met with an accident. They have further on sworn that 50 to 60 persons left Pillarkhan at the time and one Nicholas Barboza the uncle of the bride had hired the bus for transporting the marriage party from Pillarkhan to Kemmannu and back. The learned member of the Tribunal has in this connection found that Nicholas Barboza, who is said to have hired the bus or taken the bus on contract for this purpose has not been examined and it is not made known whether the one Nicholas Barboza, who died in the accident, was the very same person who is said to have hired the bus for that purpose. In view of this finding it is abundantly, clear that it has not been established before the Tribunal as to who that Nicholas Barboza, who is said to have hired the bus was. All these witnesses viz. P.W's. 1, 5, 12 and 13 have sworn that they were not present when Nicholas Barboza hired the bus for any particular amount in order to transport the marriage party from Pillarkhan to Kemmannu and back. All that they have been able to narrate is that they boarded the bus in Pillarkhan in the morning of that day and reached Kemmannu and they again boarded the bus in Kemmannu in the evening of that day and proceeded towards Pillarkhan. Therefore, the necessary evidence to establish that this bus was taken on contract by Nicholas Barboza on payment of a particular agreed sum on the whole is not forthcoming in this case.

As against this material there is the trip sheet and the counterfoil of the ticket at Ex. R-2. Ex. R-2 goes to show that a single ticket appears to have been issued in regard to 55 persons showing that they were travelling from Udipi to Innanje. That does not show that any of those persons was travelling from Pillarkhan to Kemmannu or back. The trip sheet in question also corroborates issue of this ticket.

The Tribunal has observed in this connection that these two documents appear to have been made up in that manner deliberately in order to suppress the fact that the vehicle, which was not authorised to ply as a contract carriage, had plied as a contract carriage, and to make it appear that it plied as a stage carriage. We do not see any material to warrant this inference drawn by the learned member of the Tribunal. We have already shown that the evidence of P.Ws. 1. 5. 12 and 13 would only go to the extent of showing that & party of 50 or 60 persons boarded the bus in Pillarkhan to go to Kemmannu in the morning and then again proceeded from Kemmannu towards Pillarkhan in the evening. The mere fact that a single ticket appears to have been issued cannot lead to an irresistible conclusion that the bus had been hired on contract. On the other hand the ticket itself goes to show that the fare had been calculated at regular rates from Udipi to Innanje in regard to all these 55 passengers. When there is no material to hold that Ex. R-2 and the trip sheet appear to have been concocted to make it appear that the bus had in fact plied as a stage carriage, it cannot be, on the basis of the evidence of P.Ws. 1, 5. 12 and 13, held that the bus had been hired on contract by Nicholas Barboza by paying a specified agreed sum to transport the marriage party from Pillarkhan to Kemmannu and back. It is to be particularly noticed that Kemmannu lies on the route mentioned in the permit at Ex. R-3. We therefore, do not agree with the conclusion of the Tribunal that it has been satisfactorily established that the bus was at the point of time in question, plying as a contract carriage.

6. There is no dispute that the bus was plying as a stage carriage between various points mentioned in the permit as narrated above. Kemmannu is one of those points mentioned in the permit. Therefore, the presumption that on that day also the bus was plying as a stage carriage, has to be drawn and it goes in support of the contention of the owner-appellant.

7. It was contended that the road from Shankarapura to Pillarkhan was not on the route sanctioned in the permit in question and therefore, the permit did not cover the plying of the bus on the road from Shankarapura to Pillarkhan and hence it cannot be held that the bus was plying under a stage carriage permit when the accident took place on the road between Shankarapura and Pillarkhan. We are unable to agree with this contention. 'Stage carriage' is defined in Section 2 (29) of the Act. as follows :

' 'Stage carriage' means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey;'

'Permit' is denned in Section 2 (20) of the Act as follows :

' 'Permit' means the document issued by the Commission or a State or Regional Transport Authority authorising the use of a transport vehicle as a contract carriage or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle.'

It goes without saying in view of these definitions, that the purpose for which a stage carriage permit is granted is to enable a vehicle to ply as a stage carriage. Fixing of the route and the timings would amount to providing restrictions in the manner of plying the vehicle as a stage carriage under the stage carriage permit. These restrictions have clearly nothing to do with the purpose for which the permit is granted. These restrictions would amount to conditions of permit. The fact that the vehicle was plying on a road which was not covered by any of the routes specified in the permit would necessarily mean that one of the conditions of the permit was violated at the time when the accident took place. That cannot be held to mean that the vehicle was at that point of time, plying on that road without a stage carriage permit.

8. The learned Advocate appearing on behalf of the insurer vehemently urged that as per the terms of the policy which is at Ex. R-4, there was 3 limitation placed in regard to use of the vehicle that it should ply only under a stage carriage permit within the meaning of the Act. and in view of the fact that the bus had plied beyond the route sanctioned to it in the permit in question, it will have to be held that this term in the insurance policy had been violated at the point of time when the accident took place and hence the insurer was not liable to pay the damages or compensation. The limitation found in the said term in the policy is as follows :

'use only under a stage carriage permit within the meaning of MotorVehicles Act. 1939.'

We have already shown that the fact that the bus was, at the relevant point of time plying on a road not covered by the route mentioned in the permit amounts only to a breach of condition of the permit and does not affect the purpose for which the stage carriage permit was granted i.e., to ply this vehicle as a stage carriage. It is clearly seen that in spite of breach of such a condition, the permit remained valid end the bus could continue to ply on the route mentioned in the permit under the same said permit. Breach of a condition of the permit did not automatically invalidate the permit and make it ineffective in law. The said clause in the policy does not specifically lay down anything about violating conditions of the stage carriage permit granted under the Act. All that the term required was that the bus was to ply under a stage carriage permit granted under the Act. Such a term about the breach of the conditions of the permit could not have been, in the very nature of things, incorporated in the policy because the policy was issued on 15-5-1967 while the permit in question was granted on 12-12-1967. It is seen that unless a vehicle is covered by the necessary insurance as provided in the Act. no permit would be granted to ply a vehicle on a public road. Under these circumstances, no term in regard to breach of a condition such as plying a stage carriage under a valid stage carriage permit, but on a route different from the route to be sanctioned in the permit can be incorporated in the policy. We, therefore, do not find any force in this contention.

9. In view of the foregoing reasons, it will have to be held that even at the time of the accident on the said road which was not covered by the route mentioned in the permit Ex. R-3, the vehicle was plying under a valid stage carriage permit.

10. It was nextly argued on behalf of the insurer that the purpose oJ the permit was to enable the vehicle to ply as a stage carriage only on the routes mentioned in the permit Ex, R-3 and, therefore, it will have to be held that the plying of the vehicle on the road from Shankarapura to Pillarkhan was for a purpose not allowed by the permit Ex. R-3. We have already pointed out and held that the purpose for which the stage carriage permit was granted was to enable the vehicle to ply as a stage carriage as per the definition of 'stage carriage' found in Section 2 (29) of the Act and the other terms found in the permit amount to restrictions in the manner of plying the vehicle as a stage carriage and those restrictions would be conditions of permit only and further that breach of such conditions would not affect the purpose for which the permit was granted. Therefore, this contention cannot be accepted.

11. In the light of the discussion contained in the preceding paragraphs, we hold that the finding of the Tribunal that the insurer is not liable to pay compensation, is not sustainable.

12. Cross-objections have been filed by the claimants in M.F.A, Nos. 681 and 682 of 1971, This Court has, in M.F.A. No. 165 of 1971 (reported in 1973 Cri LJ 1682) held that cross-objections in these matters are not maintainable in law. These cross-objections are, therefore to be dismissed.

13. In the result, these appeals are partly allowed. We hold that the insurer is jointly and severally liable to pay compensation, subject to a total sum of Rs. 20,000/- and also subject to a maximum of Rs. 4,000/- in regard to each of the claims as stipulated by the insurer in the policy and mentioned by the insurer in his objections statement. The remaining reliefs claimed by the owner-appellant in all these appeals are rejected. The cross-objections filed in M. F. As. Nos. 681 and 682 of 1971 are also dismissed.

14. No order as to costs in all these appeals.


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