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Bharatbhai Kasturchand Shah and anr. Vs. Mafatbhai Bababhai Makwana and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 798 of 1974
Judge
Reported in(1979)0GLR517
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 33
AppellantBharatbhai Kasturchand Shah and anr.
RespondentMafatbhai Bababhai Makwana and ors.
Appellant Advocate M.C. Shah, Adv.
Respondent Advocate D.F. Amin, B.K. Amin and; P.M. Paval, Advs.
Cases ReferredIn Panna Lal v. State of Bombay
Excerpt:
.....indemnify owner of vehicle only. - - 2. the appellants as well as the british india general insurance company ltd. 4 as well as the insurance company should be absorbed from the liability. 5. the only contention pressed on behalf of the appellants at the time of hearing of this appeal is that tribunal was clearly in error in refusing to hold opponents nos. 7. i am of the opinion that the contention advance on behalf of the appellant is well founded, inasmuch as the tribunal was overlooked the clear admissions made in the written statements of respondent no. 1 and 2 that the vehicle in question belonged to jahangirji rustomji patel in whose name in the registration of the vehicle continued, and that they were in possession of the vehicle as hire-purchasers, the original claimants..........statement of the insurance company that opponent no. 4, jahangirji patel, insured the car with the opponent insurance company, and the he transferred the said vehicle to the second opponent, who has no insurable interest, and, therefore, the insurance company is not liable for the amount of compensation claimed in the petition. it was urged on behalf of the appellant that the tribunal refused to hold opponents nos. 3 and 4 liable for the amount of compensation as the tribunal laboured under a misapprehension about the cases of the respective parties. if original opponent no. 4 was the owner of the vehicle, it was so urged, he would be vicariously liable for the tortious act of the driver, opponent no. 1, and tribunal is under obligation, under s. 110b of the motor vehicles act, 1939, to.....
Judgment:

B.K. Mehta, J.

1. Respondents Nos. 1 and 2 herein are the parents of the unfortunate victim, Ramesh, a boy of 12 years in age, who succumbed to the injuries which he received in the course of the an accident which occurred on April 7, 1972, at the junction of four known as 'Asodar Chokdi' on Vasad-Borsad road, when appellant No. 1, who happened to be the driver (partner) of appellant No. 2-firm, while coming in a car bearing registration No. GJM 7156 from Vasad side, knocked down Ramesh with the result that he was thrown award to a distance of about 15 feet due to the impact. The car could stop only after going about 80 to 90 feet. The victim of the accident was rushed to Borsad Municipal General Hospital where he died of the injuries sustained by him. Respondents Nos. 1 and 2, therefore, filed claim petition being Motor Accident Claim petition No. 47 of 1973 before the Motor Accidents Claims Tribunal, Kaira, at Nadiad, claiming compensation for the fatal accident in the sum of Rs. 9,900 comprising of different amounts, that is, Rs. 500 on account of hospital expenses, Rs. 3,000 on account of expectation of life, Rs. 2,000 on account of damages for pain and agony and Rs. 4,400 by way of pecuniary loss.

2. The appellants as well as the British India General Insurance Company Ltd. and one Jahangirji Rustomji Patel were arrayed as original opponents Nos. 1 to 4 respectively before the Tribunal. Original opponent No. 4, who is respondent No. 4 before me, was joined as a party opponent since the registration of the vehicle stood in his name in the record of the Regional Transport Office. Appellants Nos. 1 and 2 were joined as party opponents because appellant No. 1 was the main tortfeasor, being driver of the vehicle, which was agreed to be purchased by appellant No. 2-firm on hire purchase basis from opponent No. 4. Opponent No. 3 was joined as it was the insurer of the vehicle since it has issued a comprehensive insurance policy covering the loss or damage to the motor car and also for covering the liability to third parties.

3. The claim petition was resisted by the said opponents. Original opponents Nos. 1 and 2 are the appellants before me. They have denied their liability as the accident did not take place on account of rash and negligent driving. They also denied that opponent No. 1 was driving the car and opponent No. 2 was the owner of it. Opponent No. 3, the insurance company, entered the defence of bare denial of the averments in the petition. Opponent No. 3, insurance company, further contended that since opponent No. 4, the owner, had handed over the control of the car to opponents Nos. 1 and 2, the insurance company was not liable to indemnify the loss. Opponent No. 4 admitted that he was the owner of the vehicle in question at the time of the incident and the same was in the position of opponent No. 1 as hire-purchaser. He denied his liability for paying the compensation to the claimants.

4. The Tribunal raised necessary issue on these pleadings. After hearing the evidence of the parties, the Tribunal found that the victim, Ramesh, died on account of the rash and negligent driving of the vehicle in question by original opponent No. 1. It also held, on the admission made by opponents Nos. 1 and 2 in their objections to the application of the claimants for condonation of delay in filing their claim petition, that the vehicle involved in the accident was owned by opponent No. 4 and was in their position as hire-purchaser and, therefore, opponent No. 2 was the owner of the vehicle in question, and consequently vicariously liable for the tort committed by opponent No. 1. The Tribunal, however, for purposes of determining the liability of the opponent or opponents to pay compensation, could not persuade itself to hold original opponent No. 3, insurance company, liable since, in its opinion, the insured opponent No. 4 was not liable at all because it was nobody's case before the Tribunal that opponent No. 1 was the driver of opponent No. 4, and opponents Nos. 1 and 2 had no insurable interests whatsoever in the vehicle. The Tribunal, therefore, held that when on the own showing of the claimants in their petition that at the relevant time the vehicle in question belonged to opponent No. 2, the partnership-firm of which opponent No. 1 was a partner, the liability can be of the said opponents Nos. 1 and 2 only and opponent No. 4 as well as the insurance company should be absorbed from the liability. On the question of rash and negligent driving, the Tribunal found that the speaking circumstances, viz., (i) the fact that the victim was thrown away to a distance of 15 feet after he was knocked down by opponent No. 1 by the vehicle in question, and (ii) the fact that the vehicle had gone to a distance of 80 of 90 feet after knocking down the victim, would raise a presumption of res ipsa loquitur, and since that presumption is not rebutted, opponent No. 1 must be held guilty of rash and negligent driving as a result of which the victim suffered injuries to which he succumbed ultimately. On the question of quantum of damages, the Tribunal accepted the evidence of the claimants and held that they were entitled to the amount claimed by them in their petition. He, therefore, by his order of April 15, 1974, awarded Rs. 9,900 with interest at 6% from the date of the application till realisation with costs against opponents Nos. 1 and 2 and dismissed the petition against opponents Nos. 3 and 4. This award has been challenged by the original opponents Nos. 1 and 2 in this first appeal.

5. The only contention pressed on behalf of the appellants at the time of hearing of this appeal is that Tribunal was clearly in error in refusing to hold opponents Nos. 3 and 4 liable for the amount of compensation in spite of the admitted position as disclosed in the written statement of opponent No. 4 that he was the owner of the vehicle in question, and opponent No. 2 was in possession of the vehicle as a hire-purchaser, and in spite of the clear admission in the written statement of the insurance company that opponent No. 4, Jahangirji Patel, insured the car with the opponent insurance company, and the he transferred the said vehicle to the second opponent, who has no insurable interest, and, therefore, the insurance company is not liable for the amount of compensation claimed in the petition. It was urged on behalf of the appellant that the Tribunal refused to hold opponents Nos. 3 and 4 liable for the amount of compensation as the Tribunal laboured under a misapprehension about the cases of the respective parties. If original opponent No. 4 was the owner of the vehicle, it was so urged, he would be vicariously liable for the tortious act of the driver, opponent No. 1, and Tribunal is under obligation, under s. 110B of the Motor Vehicles Act, 1939, to specify the amount which would be paid by the insurer or the owner of the vehicle involved in the accident. In so far the Tribunal has overlooked this obligation prescribed under s. 110B, the Tribunal has acted illegally and, therefore, the award should be modified to that extent.

6. On the other hand, it was urged on behalf of respondent-opponent No. 4 that since no appeal has been preferred by the original claimants, who are respondents Nos. 1 and 2 in this appeal, no award can be made in their favour against the co-respondents. On behalf of the insurance company, which is respondent No. 3 before me, it was urged that the Tribunal has rightly exonerated the insurance company since on the own showing of the claimants, appellant No. 2 was the owner of the vehicle which was driven by opponent No. 1, who happened to be its driver, and who were in possession of the car as hire-purchasers and, therefore, has no insurable interest which could make the insurance company liable to pay the amount of compensation.

7. I am of the opinion that the contention advance on behalf of the appellant is well founded, inasmuch as the Tribunal was overlooked the clear admissions made in the written statements of respondent No. 3, insurance company, and respondent No. 4, the owner of the vehicle. It is no doubt true that the case as pleaded initially on behalf of the original claimants, respondents Nos. 1 and 2 before me, was that the vehicle in question belonged to appellant No. 2-firm and the appellant No. 1 was the driver at the relevant time when the accident occurred. However, on abjection being taken by appellants Nos. 1 and 2 that the vehicle in question belonged to Jahangirji Rustomji Patel in whose name in the registration of the vehicle continued, and that they were in possession of the vehicle as hire-purchasers, the original claimants move the Tribunal by their application of August 9, 1973, for joint in the owner as well as the insurance company as opponents Nos. 3 and 4 to the petition. It is, thereafter, that these newly added opponents admitted in their written statements the plea advanced on behalf of appellants Nos. 1 and 2, that the vehicle in question really belonged to original opponent No. 4 herein. It is, therefore, surprising how the Tribunal overlooked this aspect of the question. The fact which, therefore, emerges from the pleadings as well as from the evidence is that the vehicle in question was of the ownership of respondent No. 4 and was insured by him with respondent No. 3, the insurance company. It is established in evidence that respondent No. 3 has issued a comprehensive insurance policy agreeing and undertaking to indemnify the insured against loss of or damage to the motor car and/or its accessories, and also to indemnify him in the event of accident caused by, or arising out of, the use of the motor car against all sums, including claimant's costs and expenses which the insured would become legally liable to pay in aspect of death of, or bodily injury to, any person and damage to the property other then property belonging to the insured or held in trust by or in the custody or control of the insured. The period or the insurance was from 30th September, 1971, to 29th September, 1972. The vehicle insured was the vehicle involved in this accident. Para 1 of Section II if the policy, which was been produced at Ex. 46, indemnifies the insured. Paras. 3 and 4, which are generally known as 'other drivers extension clause' and 'other vehicles extension clause', respectively, provided for the liability of the insurance company to indemnify the driver who is driving the motor car on the insured's order or with the his permission provided that such driver is not entitled to indemnity under any other policy, and observes and fulfils the terms, exceptions and conditions of the policy in so far as they can apply. The schedule to the policy mentions limitations as to use and under the heading 'driver' it is clarified that (a) any person, and (b) the insured, may also drive a motor car not belonging to him and not hired to him under a hire-purchase agreement; provided that the person driving holds a licence to drive the motor car or has held is not disqualified for holding for obtaining such a licence. At the end of the schedule there is an important rider which reads :

'The assured is not indemnified if the vehicle is used or driven other wise than in accordance with this Schedule. Any payment made by the company by reason of wider terms appearing in the certificate in order to comply with the Motor Vehicles Act, 1939, is recoverable from the insured. See the Clause headed 'AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY'.'

8. Limitations as to use that the vehicle should be used for social, domestic and pleasure purposes and for the insured's business, and the policy did not cover use for hire or reward or for organized racing, pace-making, reliability trial, speed-testing, the carriage of goods (other than samples) in connection with may any trade or business or use for any purpose in connection with the motor trade. The effect of the policy is to provide for an obligation on the insurance company to indemnity the insured on the usual terms and conditions which we find in such comprehensive policy issued in respect of the vehicle sought to be covered by such policy.

9. In New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani [1964] 34 Comp Cas 693 (SC), in the context of a policy which was in pari materia with the policy with which I am concerned in this appeal, the Supreme Court was required to consider the obligation of the insurance company under such policies, and it was held that the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties in view of the provisions of the Act; and once the company had undertaken liability to third parties, incurred by the persons specified in the policy, the third parties' right to recover any amount under or by virtue of the provision of the Act is not affected by any condition in the policy. In may opinion, therefore, the Tribunal was clearly in error in overlooking this aspect of the question and various terms and conditions of the policy in question of before me and, therefore, erred in holding that neither respondent No. 4 nor respondent No. 3 was liable for the payment of the amount of compensation as awarded. The moot question, which really arises in this appeal on the only connotation urged on behalf of the appellants is, whether this court can now modify the award by holding respondents Nos. 3 and 4 liable, who have been absolved by the Tribunal to pay compensation to the original claimants-respondents Nos. 1 and 2 before me. In other words, whether an award can be made in favour of the original claimants, respondents Nos. 1 and 2 before me, against respondent Nos. 3 and 4 herein, though the original claimants have not come in appeal against that part of the award by which respondents Nos. 3 and 4 have been absolved of their liability to pay compensation as awarded.

10. In Panna Lal v. State of Bombay AIR 1963 SC 1516, a question arose whether the High Court of Bombay was in error in refusing to exercise its power under O. 41, r. 33 of the CPC while allowing the appeal and reversing the case decree of the trial court by granting a decree in favour of the plaintiff-respondent against the co-respondents, who were absolved by the trial court. Two contentions were urged before the Supreme Court : that the High Court of Bombay was perfectly justified in refusing to exercise the power under O. 41, r. 33, because, in the first instance, no appeal was preferred any the plaintiff-respondent who could not have, in any case, preferred cross-objections against the co-respondents, since O. 41, r. 22, of the CPC, permits filing of the cross-objections in an appeal against the appellant only. Rejecting both these contentions, the Supreme Court held that having regard to the wide wording of O. 41, r. 33, it was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent, but also as between a respondent and a respondent, and that the appellate court is empowered not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as 'the case may require'. The Supreme Court further half that if there was no impediment in law, the High Court, in appeal, could, therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiff's suit against him, give the plaintiff respondent a decree against any or all the other defendants who were parties to the appeal as respondents. The court further held if a party who could have filed a cross-objection user O. 41, r. 22 has not done so, it cannot be said that the appeal court can, under no circumstances, give him railed under the provision of O. 41, r. 33. In the present case, I am of the opinion that this court should exercise its power under O. 41, r. 33, of the CPC, otherwise the original claimants would be left high and dry, since in a given case the claimants may not be able to execute the decree and obtain the complete relief granted under the decree from the opponents who are made liable user the award. In the present case, I am told the decree has not been fully satisfied by appellants Nos. 1 and 2. It should be recalled that, on the facts admitted by the respondents, the present owner of the vehicle is respondent No. 4 and appellants Nos. 1 and 2 were in possession of the vehicle as hire-purchasers and appellant No. 1 was the driver of the vehicle at the relevant time. In other words, respondent No. 4 permitted or authorises appellant No. 1, being the hire-purchaser to drive the car. None the less, respondent No. 4 continued to be the owner and, therefore, remained vicariously liable for the acts of tort committed by appellant No. 1 in the course of the existence of the hire-purchase agreement. The state of affairs in the present case, therefore, is such that the reliefs claimed by the claimants against the different opponents are so intermixed that unless this court exercises ITO power under O. 41, r. 33, of the CPC, the claimants may find themselves in apposition where they might not be able to execute the decree fully. Therefore, in the circumstances of this case, though I do not find any justifying reasons to interfere with the order and award of the Tribunal so far as the appellant are concerned, I propose to exercise the powers of the appellate court under O. 41, r. 33, by holding the respondent No. 4 was also vicariously liable for the tortious act of appellant No. 1 and, therefore, responsible for payment of the compensation to the original claimants as awarded by the Tribunal. Consequently, respondent No. 3, being the insurance company, would also be liable to pay the said amount. It that view of the matter, therefore, the order of the Tribunal requires to be modified.

11. In the result, this appeal is dismissed but the order of the Tribunal is modified so as to the that applicant do recover compensation of Rs. 9,900 with interest at 6% per annum from the date of the application till realisation with full costs from all the opponents Nos. 1 to 4 who are jointly and severally held liable for the same. Opponents Nos. 3 and 4 shall pay costs to the original claimants all throughout and shall pay costs of this appeal to appellants. Respondents Nos. 3 and 4 shall bear their own costs.

12. Award be modified accordingly.


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