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New India Assurance Company Ltd. Vs. Shaik Jaffar and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Order Nos. 313, 314, 315 and 316 of 1980
Judge
Reported inAIR1982AP309
ActsMotor Vehicles Act, 1939 - Sections 96 and 96(2); Andhra Pradesh Motor Vehicles Rules, 1964 - Rule 213
AppellantNew India Assurance Company Ltd.
RespondentShaik Jaffar and ors.
Appellant AdvocateI.A. Naidu, Adv.
Respondent AdvocateP. Venkatamui Reddy, Adv.
Excerpt:
.....for hire and reward and they were not employed under respondents - appeal allowed against the owner of vehicle for compensation. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act shall not apply to any building the rent of which as on the date of the commencement of the a.p. buildings ( lease, rent and eviction) control (amendment) act 2005 exceeds rs.3,500/- per month in the areas covered by the municipal corporations in the state and..........taken as passengers by the driver contrary to the conditions of the permit relating to the lorry (goods vehicles). he submitted that, according to the express terms of the insurance policy, taking of such passengers is prohibited. if so, it is argued, the insurance company cannot be made liable for the compesation awarded.5. it is now well ettled that the only exceptions which an insurance company can plead in a claim for compensation, are those est out in sub-sec. (2) of s. 96 of the motor vehicles act. mr. i. a. naidu relies upon sub-cl. (i) (c) , occuring in cl. (b) of sub-sec. (2). in other words, his contention is that there has been a breach of a specified condition of the policy, excluding the use of the lorry in question for conveyance of passengers for hire or reward. i am.....
Judgment:

1. These four Civil Miscellaneous Appeals are preferred by the Insurance Company questioning the award of the Motor Accidents Claims Tribunal. The contention of Mr. I. A Naidu is that on the findings recorded by the Tribunal, the Insurance Company could not have been made liable for paying the compensation awarded. IT is necessary to state a few facts:

2. On 14-12-1978, the petitioner in O.P. No. 236/1978 (First respondent in C.M.A 313/80) was driving the lorry, APQ 3547 loaded with Gammaxine bags. He was transporting them from Doopadu railway Station, to Nellore. While going on the Bombay-Nellore High Road, near Bedvel town, he met a party of music artists. They were stranded for want fo transport. At their entreaty, the lorry and, accordingly, they got into the lorry. When the lorry reached K. M. 61 near Kona Samudran Cross- road, within dashed against a palmyra tree, and got damaged. The inmates, including the driver and the three music artists who got into the lorry near Badvel town, were also injured. Claims were laid by the driver, as well as the said three Artists for compensation, both against the owner of the vehicle and the insurance Company. The Tribunal found that the three music artists having paid the hire or the charges, as the case may be for travelling in the lorry, must be held to be persons carried for hire or reward, as the case may be (it found that they were carried in the cabin of the lorry) and purportin go follow the Full Bench decision of the Gujarat High Court's in Ambaben v. Usmanbhai Amirmiyya Sheikh, : AIR1979Guj9 , the Tribunal held the insurance Company liable for paying the amounts awarded by it. Hence these appeal.

3.So far as C.M.A No. 313 of 1980 is concerned, the claimant is the driver of the lorry, and there can hardly be any dispute about the liability of the Insurance Company to pay the compensation to him. No doubt, such compensation has to be determined having regard to proviso (I) to cl. (b) of sub- sec. (1) of S. 95. It is not complained before me that the determination of the quantum of compensation has not been done in accordance with the aid proviso. Therefore, so far as C.M.A. No 313 of 1980 I concerned, there can be no legitimate grievance. It is, accordingly, dismissed with costs.

4. The main contention of Mr. I. A. Naidu, the learned counsel for the appellant - Insurance Company, is that, so far as the three music artists are concerned, they were not the employees of the owner of the vehicle, nor were they the owners of the goods, or servants or agents of the owner of the goods being transported in the lorry. They were taken as passengers by the driver contrary to the conditions of the permit relating to the lorry (goods vehicles). He submitted that, according to the express terms of the insurance policy, taking of such passengers is prohibited. If so, it is argued, the Insurance company cannot be made liable for the compesation awarded.

5. It is now well ettled that the only exceptions which an Insurance Company can plead in a claim for compensation, are those est out in sub-sec. (2) of S. 96 of the Motor Vehicles Act. Mr. I. A. Naidu relies upon sub-cl. (I) (c) , occuring in cl. (b) of sub-sec. (2). IN other words, his contention is that there has been a breach of a specified condition of the policy, excluding the use of the lorry in question for conveyance of passengers for hire or reward. I am inclined to uphold this contention . The clause nd the sub-clauses which are relevant, and are attracted in the present case, are the following:-

'............... an insurer to whom notice of the bringing of any such proceedings is so given shall be entitle to be made a party there to and to defend the action of any of the following grounds, namely:

(a) XX XX XX

(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-

(i) a condition excluding the use of the vehicle-

(a) & (b) XX XX XX (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle ...................'

6. According to cl (b) of sub-sec. (2), violation of any and every condition of policy does not exonerate the insurer from the liability under the Act. The violation must be of a specific condition of a specified nature . Since in this case, Section 96 (2) (b) (I) (c) is being invoked it is necessary to establish two things viz., (I) that there has been a violation of a specific condition of the policy and (ii) that the transport vehicle has been used for a purpose not allowed by its permit.

7. Before proceeding to deal with these questions, it is necessary to refer is some more provisions of the Act and Rules. The expression 'transport vehicle's is defined by Cl. (33) of S. 2, to mean public service vehicle, or a goods vehicle'. 'Goods Vehicle' is defined by Cl.(3) of S. 2, to mean 'any motor vehicle constructed or adapted for use for the carriage of goods or any motor vehicle not so constructed or adapted when used for the carriage of good, loel or in addition to passengers'.

8. Rule 213, part-V, of the A._P. Mototr vehicle Rules, sets out the additions $s applicable to goods vehicles. Conditions (iv) and (v) are relevant for the present purpose, and they read as follows:--

'(iv) No other person shall be carried in the cab of the vehicle beyond the number for which there is earling accommodation at the rate of 284 millimeters measuremend along the seat, excluding the space reserved for the driver, for each person.

(v) Not more than six persons in all in addition to the driver shall be carried in the vehicle except with the permission of the Transport Authority.'

9. Admittendly, the vehicle in question is a goods-vehicle constructed for the carriage of goods. It I, no doubt, true that it is entitle to carry not more than six persons in all, in addition to the driver, in the vehicle; but, the six persons mentioned therein must be either the employees of the owner of the vehicle, or the owner of the goods, or hi agents or ervatns, as the case may be. It is not brought to my notice that the permit for a goods vehicle issued under the Act, entitles such a goods vehicle to carry passengers for hire or reward. It si thus clear that under the permit issued for the vehicle in question under the motor vehicles Act, it is not permitted to carry passengers for hire or reward.

10. Now coming to the policy issued by the appellant, it expressly states that ' the policydoes nto cover.............(3) use for the conveyance of passengers for hire or reward.........'

Thus, in this case, both the conditions contemplated by the relevant sub-clauses is sub-sec. (2) of S are satisfied and therefore the Insurance Company cannot be held lable.

11. It is, however, necessary to briefly refer to certain decisions relied upon by both the counsel before me. The first decision relied upon by the learned counsel for the respondents -claimants is of a Bench of this court in M. Suryanarayana v. G. Satyavati (1979) 1 APLJ (HC) 401.

That was a case where the owner of the goods met with an accident, and claimed compensation on that account. On behalf of the Insurance Company an objection was raised that the Insurance Company was not liable, inasmuch as the injured person (owner of the goods transported in the vehicle ) was not a person carried for hire or reward, or by reason, of , or in pursuance to a contract of employment. It was argued that the owner of the goods who travels in a goods being transported in the lorry, was accompanying the goods as in the normal situation and that, his travellng in the vehicle cannot be said to be unauthorised or prohibited by the permit, or by the policy. S far as the permit is concerned it was observed, with reference to condition (v) in R.213 -V, that six persons in all can be carried in addition to the driver, in a goods vehicle and that, the owner fo the goods was within the permitted category. So far as the policy is concerned, the Bench observed that the Insurance Company failed to produced the policy and, therefore, it cannot be said whether the policy prohibited the owner of the goods being carried of in the vehicle. But, in my opinion, condition (v) of R. 213 -V cannot be extended to passengers who have nothing to do either with owner of the vehicle, or with the owner of the vehicle, of the goods, in the sense that they are not the employees of the owner of the vehicle, nor are they the owners, or servants or agents of the owner/owners of the goods carried in the vehicle.

12. The next decision relied upon is of Venkatrama Sastry, J. in Hindustant Ideal Insurance Corporation Ltd. V. Manner Chimperamma, : AIR1974AP120 . Following the decisions rendered by various High Courts, the learned Judge observed in Para 15 (of Acc CJ): (para 14 of AIR):

' All the above four decisions are directly in point and conclude the question in this case. The principle behind all these decisions is that under proviso to S. 95 (1) (b) of the Act, the Insurance Company is liable to meet the liability I respect of death or bodily injury of a passenger only if he has been carried for hire or reward or by reason of or in pursuance of a contract of employment. If both these things absent, then the insurance Company escapes the liability ..........' That was also a case where the Claimant was the owner of the goods carried in the vehicle. The learned Judge, however, held that, since the owner of the goods cannot be said to be a person carried for hire or reward the Insurance Company cannot be held liable. This decision must, however, be read and understood subject to the subsequent Bench decision, referred to above. In any event, as I have stated above, since the permit of the vehicle prohibits the carrying of passengers for hire or reward, which is also prohibited by the policy, the Insurance Company cannot be made liable in thee matters.

13. Learned Counsel for the Respondents claimants then relied upon the decision fo a single Judge in Sunder Lal v. Om Singh, 1978 Acc CJ 267 (Punj & Har) but, I find that this decision does not deal with the liability of the Insurance Company, nor with Ss. 95 and 96 of the Act.

14. The next decision relied upon I that of a Full Bench of the Madhya Pradesh High Court, in Narayanlal v. Rukmanibai, : AIR1979MP74 . That again is not a case dealing with the liability of an Insurance Company, with reference to Ss. 95 and 96. The decision deals only with the liability of an owner. IT was held that since there was not express prohibition by the master from giving lift to any one in the truck, the owner is liable to apply compansation to the pasengers who were given a lift by the driver, no doubt, contrary to a lift by the driver, no doubt, contrary to a lift by the driver, no doubt, contrary to the express Rules framed under the Act.

15. The other decision relied upon by the learned counsel for the respondents claimants, is Jiwan Das Roshan Lal v. Karnail Singh, . This again is not a case dealing with the liability of an Insurance Company. But that of the owner alone. The principle of this decision, however, seems to run counter to the decision of the Full Bench of the Madhya Pradesh High Court; But, it is not necessary to deal with the said aspect definitely for the purpose of these appeals.

16. For the above reasons, the three appeals, viz., C. M. As. Nos 314 to 316 of 1980 are allowed; but in the circumstances, without costs. The liability of the owner of the vehicle, however, remains undisturbed and it shall be open to the claimants to proceed against the owner of the vehicle for realisation of


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