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Oriental Fire and General Insurance Co. Ltd. Vs. Husseinbhai Abdulbhai Shaikh and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtGujarat High Court
Decided On
Case NumberF.A. Nos. 851, 853 to 858, 860, 863 865 and 866 of 1977
Judge
Reported in[1987]62CompCas841(Guj)
ActsMotor Vehicles Act, 1939 - Sections 95(2)
AppellantOriental Fire and General Insurance Co. Ltd.
RespondentHusseinbhai Abdulbhai Shaikh and ors.
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate V.J. Desai, B.B. Parikh, A.R. Shah and S.N. Shelat, Advs.
Excerpt:
.....course of their employment with opponent no 2 and that, therefore, the driver, the owner and the insurance company with which the vehicle was insured, were liable to make good various amounts of compensation. 4. learned counsel for the insurance company seriously called in question this particular finding and a good deal of reference to the evidence and the pleadings were required to be had on this point but we ultimately found that the insurance company itself had accepted this finding and grounds nos. 8 and 9 in the memos of appeal clearly show that the insurance company wanted this court to proceed on the footing that the passengers had paid charges equivalent to the state transport bus charges. 7. learned counsel for the appellant, however, invited our attention to our judgment..........or (c), of subsection (2) of section 95 would apply in the case of a passenger carried in a goods vehicle, carried for hire or reward. despite the full bench judgment of our high court in the case of new india assurance co ltd. v smt nathiben chatrabhuj [1982] 1 glr 411; [1984] 55 comp cas 568 (guj) [fb], the position cannot be said to be thoroughly and satisfactorily explained or decided and unless an authoritative pronouncement of the law is given, controversy is likely to be raised off and on, particularly in this state, where the number of claim petitions has gone beyond the limits of imagination. leave prayed for is, therefore, granted. 11. to enable the appellant to have suitable orders from the supreme court, the operation of this judgment is stayed for a period of two months.....
Judgment:

Bhatt, J.

1. This group of appeals is preferred by common opponent No 3, the Oriental Fire and General Insurance Co Ltd. As many as 17 claim applications had come to be filed before the Motor Accidents Claims Tribunal, Kaira at Nadiad, and they were tried jointly because all of them had arisen out of the same accident that had taken place on February 15, 1976, in the early hours of the morning. The numbers of the claim applications with their respective numbers of the appeals are to be found at annexure 'A' to this judgment. On that day, which was a full moon day of that month, many persons were stranded at the Mehmedabad S T bus stand. They were all bound for Dakore, a holy shrine in Gujarat, for the purpose of having glimpses of the deity there. Judicial notice is to be taken of the fact that there are numerous devotees in Gujarat, who under a vow, take a journey to that holy place for darshan. Those 17 persons were given a lift in truck No GTG 1525 driven by opponent No 1 in the course of his employment with opponent No 2. Unfortunately, after the truck travelled some distance, it went amuck and fell into a ditch nearby. The result was that six passengers had died and the rest were injured. Six claim petitions had come to be made before the Tribunal by the heirs of the deceased victims to claims the amounts of compensation and so were the applications by the injured persons.

2. The learned Tribunal raised various issues in all those matters and we find those issues reproduced application-wise in paragraph 5 of the Tribunal's judgment. The Tribunal ultimately held that all these people who suffered were passengers for hire or reward, that they were offered lift by the driver and the conductor of the truck, who were working at the relevant time in the course of their employment with opponent No 2 and that, therefore, the driver, the owner and the insurance company with which the vehicle was insured, were liable to make good various amounts of compensation. Being aggrieved by the joint and several liability imposed on the insurance company, it has filed the present appeals before us.

3. It was firstly contended on behalf of the insurance company that these claimants were gratuitous passengers and so as per the settled law, the insurance company was not liable. There is no controversy before us that if these claimants or persons who travelled were gratuitous passengers, the insurance company would not be liable. Two witnesses, Vidyaben, exhibit 83 and Kapilaben, exhibit 33, were examined in this case. Though in all the petitions it was alleged that the passengers were charged the fare equivalent to the fare charged by the S T Bus service, for some queer reasons these two witnesses tried to assert that they were offered free lift whereas their cross-examiners tried to prove that the lift was not gratuitous, but it was a paid one. The driver of the vehicle, however, denied his having accepted any charges. This was a fantastic theory put forward by him. He stated that the passengers, who were stranded at the Mehmedabad bus stop, had forcibly entered into the body of the truck and had made him drive the truck under the threat of beating him. The Tribunal did not believed this part of the story and we also, on our part, would not attach any credence to it. The Tribunal ultimately on this point held as follows :

'It also appears that he must have charged some fare from the persons who had boarded the buses were not available, the injured applicants and the deceased might have paid the same.

4. Learned counsel for the insurance company seriously called in question this particular finding and a good deal of reference to the evidence and the pleadings were required to be had on this point but we ultimately found that the insurance company itself had accepted this finding and grounds Nos. 8 and 9 in the memos of appeal clearly show that the insurance company wanted this court to proceed on the footing that the passengers had paid charges equivalent to the State transport bus charges. We, in the final analysis, did not permit the appellant to make out a different case at variance with the specific ground put forward in the memos of the appeals. After all, no defence could be taken by the insurance company on this point. We also did not permit learned counsel for the appellant to urge that the claimants in Claim Applications Nos. 218, 219 and 220 of 1976 from which First Appeals Nos. 865, 866 of 1977 had arisen, were or were not the employees of the insured because the memos proceeded on the clear admission of they being passengers who had paid charges.

5. This brings us to the last contention put forward by learned counsel on behalf of the appellant-insurance company. It was urged before us that at any rate the liability of the insurance company by recourse to section 95(2)(b) could not exceed Rs 50,000 in all and under clause (4) of the said clause (b) of section 95(2), the liability of the insurance company could not exceed Rs 5,000 for each individual passenger. It is this question that is required to be dealt with in this case.

6. Learned counsel for the appellant in this connection invited our attention to the unreported judgment of the Division Bench of this court in First Appeal No 134 of 1972 decided on April 9, 1973, but we find that the said judgment has proceeded on the footing that the deceased was a regular employee of the Una Sugar factory which paid labour charges and that for business reasons under the contract of employment, a labourer was carried in the goods vehicle. There, it was held that the limit would have to be found from section 95(2)(b), which provided that '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 respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger.......' That point was upheld on the assumption that the vehicle was a vehicle in which passengers were carried by reasons of or in pursuance of a contract of employment. In the case on hand, we might be inclined to say that for technical purposes, even if we have to call the vehicle a vehicle in which the passengers are carried for hire or reward, the said clause (b) will not be attracted. Our reasons are that clause (a) will not ex facie apply because it is confined to persons other than passengers carried for hire or reward. Clause (b) also will not be attracted because it pertains to a vehicle which is 'registered to carry a particular number of passengers'. In case on hand, there is nothing on record to show that the goods vehicle in question was registered to carry a particular number of passengers. In other words, sub-clauses (1), (2) and (3) of clause (ii) of section 95(2)(b) will not at all be attracted. If sub-clauses (1), (2) and (3) of clause (ii) of section 95(2)(b) are not attracted, the conjunctively joint clause (4) dealing with passenger-wise limited liability also will not get attracted because in our view sub-clause (1), (2) and (3) are interconnected and sub-clause (4) cannot be dissected from the context. So clause (c) which is a residuary clause and which provides for no limits on the liability will stand attracted.

7. Learned counsel for the appellant, however, invited our attention to our judgment recently delivered where we stated that clause (a) of sub-section (2) would be attracted in a case like this. We are not required to decide whether we had correctly or incorrectly decided that point, because even if any view is taken, it does not make any difference in this case because in no case out of the 15 cases in this group of appeals, the amount exceeds Rs 50,000. All we would say is that when we decided the earlier matter, that is, the First Appeal No 1202 of 1977 and others on June 24, 1983, the earlier judgment of the Division Bench in the First Appeal No 134 of 1972, referred to above, was not cited before us.

8. In the above view of the matter, we see no merit in these appeals which are hereby dismissed. In view of the questions of law involved in this group of appeals, we leave the parties to bear their own costs in these appeals.

9. The application for permitting additional evidence is rejected because we do not find that clause (c) of rule 27 of Order 41 of the Civil Procedure Code stands attracted. We see no sufficient cause for allowing this additional evidence sought to be produced at this stage, particularly when the facts were known to this appellant-insurance company, which was free to produce the permit in question. It will not do to say that further exposition of law at the hands of this High Court creates an occasion for the insurance company to produce that evidence. If we allow that, we would be permitting a litigant to fill in the lacuna.

10. At this stage, learned counsel for the appellant-insurance company sought for leave under article 133 of the Constitution of India. We find that a substantial question of law of general public importance arises in this litigation and, in our opinion, it is required to be decided by the Supreme Court. The question is, which clause (a) or (b) or (c), of subsection (2) of section 95 would apply in the case of a passenger carried in a goods vehicle, carried for hire or reward. Despite the Full Bench judgment of our High Court in the case of New India Assurance Co Ltd. v Smt Nathiben Chatrabhuj [1982] 1 GLR 411; [1984] 55 Comp Cas 568 (Guj) [FB], the position cannot be said to be thoroughly and satisfactorily explained or decided and unless an authoritative pronouncement of the law is given, controversy is likely to be raised off and on, particularly in this State, where the number of claim petitions has gone beyond the limits of imagination. Leave prayed for is, therefore, granted.

11. To enable the appellant to have suitable orders from the Supreme Court, the operation of this judgment is stayed for a period of two months from today.


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