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National Insurance Co. Vs. Hematsinh Nanbha Saarvaiya and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtGujarat High Court
Decided On
Judge
Reported in[1988]64CompCas86(Guj)
ActsMotor Vehicles Act, 1939 - Sections 2(33), 2(25), 95(2), 96(2) and 110AA; Workmen's Compensation Act, 1923
AppellantNational Insurance Co.
RespondentHematsinh Nanbha Saarvaiya and ors.
Appellant Advocate B.R. Shah, Adv.
Respondent Advocate Rajni H. Mehta, Adv.
Excerpt:
company - compensation - sections 2 (33), 2 (25), 95 (2), 96 (2) and 110aa of motor vehicles act, 1939 and workmen's compensation act, 1923 - whether insurance company liable to pay compensation - no evidence on record to show heirs of deceased filed application and received compensation under act of 1923 - insurance company not entitled to repudiate liability on such plea as per section 96 (2) - held, insurance company liable to pay compensation - taking into account facts of case court enhanced amount of compensation payable to claimants. - - bus which was coming from the opposite direction with had not stopped at a safe distance in spite of the signals given by him. he relied upon the evidence of a number of wit-nesses as well as panchnama and the complaint filed against tekhubha......said bus, are liable to pay the compensation. 4. now, in this group of appeals, the finding of the learned tribunal that the driver of the luxury bus was driving the bus racy and negli- gently due to which the accident occurred is not challenged. 5. the learned advocate for the appellant insurance company has vehe- mently contended that at the time when the accident took place, the driver of the luxury bus was not having valid permission or authorissation from the rto officer and, therefore, the insurance company is not liable to indemnify the owner of the said bus and hence the insurance company is not at all liable to pay the compensation. he submitted that as per exhibit 70 which is the policy, the limitation as to use of the vehicle is only as a contract carriage. therefore, he.....
Judgment:

Shah, J.

1. The insurance company has filed this group of first appeals which arise out of the common judgment and order dated October 21,1978, passed by the Motor Accidents Claims Tribunal, Rajkot District at Rajkot, in various claim petition filed by the claimants. In first Appeals Nos. 1047 of 1060 of 1979 and 1066 of 19798, the claimants have filed cross-objections for enhancement of the compensation. At the time of hearing of these appeals, the learned advocate for the claimants has submitted that he may be permitted to reduce the claim in the cross-objections. The permission is granted and he has reduced the claim in the aforesaid cross-abjections to Rs. 8,000.

2. These claim petition arise out of an accident which took place on June 12, 1977, at about 3-30 p.m. on Upleta Probandar Highway near village Morkhand between private bus no.GTK 3148 and S.T. bus No. GTE 3084. For the marriage of one Gandalal Nathabhai Gajera, a private luxury bus No. GTX 3148 was hired and the marriage party proceeded from village Makhatimbi to village Makhiyala in the early hours of May 12,1977. After the marriage was over, the marriage party started at about 3-00 p.m. from village Makhyala for doing Makhatimbi. Tekhubha Lakhubha Jadeja was the driver of the said bus. At about 3-30 p.m. the S.T. bus No. GTE 3984 was going towards Kutiyana and at a distance of about 2 to 3 kms. from Upleta near Mekhatimbi village, the accident took place. Because of the accident, one member of the marriage party died and several other persons received injuries. Nine passengers tra- velling by the S.T. bus died and some others received injuries. The driver of the S.T. bus also died on the spot. The injured persons were removed to the Upleta Hospital and thereafter some of them were taken to Junagandh Hospital. In these matters, it is an admitted fact that the accident took place at about 3-30p.m. on May 12,1977 on the highway near Morkhada village between the luxury buss which was proceeding form mekhatimbi towards village Makhityala and S.T. buss No. GTE 3984 which was proceeding towards Kutiyana.

3. The Accidents Tribunal, after raising necessary issues, arrived at the conclusion that Tekhubha Lakhubha, driver of the luxury bus, was solely responsible for the accident and that drove the said bus rashly and negligently thus causing the accident. He held that there was contributory negligence on the part of the driver of the S.T. bus and that there was no rashness and negligence on the part of the deceas-ed Hematsinh Nanbha, driver of the S.T. bus. The Tribunal rejected the contention of the driver, Tekhubha Lakhubha, that one cart was going ahead of his bus and at the time when he was overtaking the cart, the accident took place because the S.T. Bus which was coming from the opposite direction with had not stopped at a safe distance in spite of the signals given by him. He relied upon the evidence of a number of wit-nesses as well as panchnama and the complaint filed against Tekhubha. On this basis, the learned judge arrived at the conclusion that the owner of the luxury buss, driver of the luxury bus and the National Insurance Company, insurer of the said bus, are liable to pay the compensation.

4. Now, in this group of appeals, the finding of the learned Tribunal that the driver of the luxury bus was driving the bus racy and negli- gently due to which the accident occurred is not challenged.

5. The learned advocate for the appellant insurance company has vehe- mently contended that at the time when the accident took place, the driver of the luxury bus was not having valid permission or authorissation from the RTO Officer and, therefore, the insurance company is not liable to indemnify the owner of the said bus and hence the insurance company is not at all liable to pay the compensation. He submitted that as per exhibit 70 which is the policy, the limitation as to use of the vehicle is only as a contract carriage. Therefore, he submitted that for contract carriage, there must be a valid permit as provided under section 96(2)(b)(i)(c).

6. In our opinion, the submission of the learned advocate cannot be upheld because under section 96(2), the insurance company can defend the action on the limited grounds as stated therein. Under section 96(2)(b)(i) of the Motor Vehicles Act, 1939, the insurance company can defend if there is a bench of a specified condition in the policy which is as under.

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

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purposes not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side-car being attached, where the vehicle is a motor cycle.

7. There is no evidence on record to prove that the luxury but was used for a purposes not allowed by the permit. In this case, it is an admitted fact that the vehicle is a transport vehicle. Section 2(33) defines 'transport vehicle' meaning a public a public service vehicle or a goods vehicle. 'Public service vehicle' is defined under section 2(25) meaning any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor car, contract carriage and stage carriage. Section 2(3) daffiness 'contract carriage' meaning a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as whole at or for a fixed or agreed rate of sum. Now, in this case, it is proved fact that the aforesaid bus was used as a contract carriage. In the deposition of Gandalal Nathalal exhibit 83, he has stated that the took the bus on hire for carrying a marriage part from village Mekhtimbi. He had agreed to pay Rs. 465 as him charges to Ram Transport Company, the owner of the luxury bus. In the said bus on May 12, 1977, they went to Makhiyala. The accident took place when they were returning from Makhiyala to their village Mekhatimbi at about 3-30p.m. There so not dispute the fact that the bus was hired for carrying the marriage party. In this view of the matter, it cannot be said that the bus was not used as a contract carriage. Once it is held that the bus, which was public service vehicle, was used as contract carriage, then it cannot be said that there is breach of section 96(2)(b)(c). It cannot be said that the vehicle was used for a purpose not allowed by the permit. The conditions of the policy nowhere laid down that the vehicle cannot be used unless there did a permit by the RTO office. In this view of the matter, it is no necessary to decide whether the permit was obtained by the owner of the vehicle or his agent on May 12, 1977, prior to the accident or after the accident. The learned judge has taken into consideration the evidence of J.J. Oza, senior clerk in the RTO office, that the necessary amount was deposited after 2;30. p.m. on May 12,1977, and the permit was issued. He has also relied upon the other evidence to hold that the necessary permit was obtained. But in view of the fact that no such condition is laid down in the policy, it is not necessary for use to decided the question because the limitation which is prescribed under the policy is to use it only as a contract carriage at the relevant time. In any cases, there is no evidence on record to show that the vehicle was used for purpose not allowed by the permit.

8. The learned advocate for the appellant fairly conceded that view of the decision in Motor Owners' Insurance Co. Ltd. v. jadaavji Keshavji Modi, [1982] 52 Comp Cas 454 wherein the Supreme Court has interpreted the phrase 'any one accident' occurring under section 95(2) and held that if because of one accident, injury is caused to a number of persons, then the insurance company would be liable to indemnify the owner with regard to the claims of all the injured persons. Therefore, the other contention of the appellant that the insurance company is liable to pay Rs.50.000in all would not survive.

9. Learned advocate for the appellant further submitted that in First Appeal No. 1045 of 1979, the heirs of the deceased of the driver of the S.T. bus have received Rs.18,000 from the S.T. Corporation under the Workmen's Compensation Act, 1923, and, therefore, their application under the Motor Vehicles Act is not maintainable under section 110AA of the Motor Vehicles Act. Section 110AA gives an option for claiming compensation and provides that where the death of, or bodily injury to, any person gives rise to a claim for compensation under the Motor Vehicles Act and also under the Workmen's compensation Act, 1923, the person entitled to compensation may claim any such compensation under either of those Acts but not under both. The Tribunal has appreciated the evidence of the widow of the deceased and has arrived at the conclusion that there was no evidence or record to show that heirs of the deceased received compensation under the Workmen's Compensation Act, 1923. The only evidence on record is that Bai Nanbha, widow of Haemtsinh. She has stated in her deposition that from the S.T. Corporation she has received Rs. 6,000 and Rs. 12,000 were deposited in the names of minors. She has also stated that no application was filed by her or on behalf of minors for getting compensation. In the cross-examination, she has stated that she got the amount of Rs. 18,000 in all through the labor court. No effort was made wither by the owner of the bus by the insurance com-pany to produce on record any application filed by the widow of the deceased driver to prove that an application under the Workmen's Com-pensation Act was filled by the heirs of the deceased. Therefore, in our view, it cannot be said that the learned Tribunal committed nay error in holding that there was no evidence or record to hold that the heirs of the deceased have filed an application for compensation under the Workmen's Compensation Act and that they have received the said amount under the said Act. Further, it is not open to the insurance company to take this plea in view of the provisions of section 96(2)

10. In this view of the matter, all the appeals filed by the insurance company require to be dismissed.

11. First Appeals Nos. 1045,1046,1048,1049,1051,1054 to 1965 of 1979 and 617 of 1985 are advised with no order as to costs.

12. First Appeals Nos. 1047,1050,1052,1053,and1066 of 1979 are dismissed with costs in respect of claimants only. The other respondents will bear their own costs.

13. With regard to cross - objection in First Appeal No. 1047 of 1979, the learned Tribunal has awarded RS. 33,000 to the heirs of the deceased Santokben. The learned Tribunal has awarded Rs. 30,000 for pecuniary loss and Rs. 3,000 as a conventional amount, i.e. in all Rs. 33,000. This claim petition is filed by has husband and minor and minor sons and daughters. It is the say of Ranchhodbhai that decreased Santokben was aged about 40 years on the date of accident. She was bringing vegetables from Plate and wan selling the same at villages Varjabg Jaliya. It is his say that her income from the said business was Rs. 15 per day. Now, for proving the fact that that she was earning Rs. 15 per day, he has not adduced any evidence, nor has he proved the fact as top how much vegetables were purchased and were sold per day. The learned Tribunal has assessed her income at Rs. 7 per day and has held that she might be contributing Rs. 168 to the family members. Ignore view, taking into consideration an overall view of the facts, it would be reasonable to hold that she might be contributing in all Rs. 200 per month to we family, i.e., in all RS. 2,400 per year. Applying the multiplier of 15, the total amount comes to R.S. 36,000. Therefore, in our opinion, the claimant are entitled to have an additional amount of R.S. 6,000 with interest and proportionate causes.

14. In First Appeal No. 1050 of 1979, the claimants are parents of the decreased Jamnadas Arijan, who was aged about 25 on the date o the accident. The learned Tribunal has awarded Rs. 27,000 for pecuniary losses and Rs. 3,000 as conventional amount, i.e., in all Rs. 30,000.At the relevant time, deceased Jamnadas was unmarried and was serving in Day - light Ceramics Factory. It is the say of Arijan that the deceased was earning Rs. 7.85 per day from the factory and Rs. 70 per month by doing pear - time work ass a wireman. Aejun has also deposed that his son had passed S. S. L. C. examination and had done certificate course as a wireman. The learned Tribunal took into the consideration the fact that he might be drawing in all Rs. 200 per month and out of it he must be contributing Rs. 150 for maintenance of the family. Taking into consideration the overall picture, an additional amount of Rs. 6,000 is required to be awarded on this count. Therefore, the claimants are entitled to have the additional amount of Rs. 6,000 with interest and proportionate costs.

15. The insurance company is directed to deposit the additional amount before the Tribunal within three months from today. The learned advocate for the claimants agrees that the additional amount which is awared by this court should be deposited by the Tribunal in a nationalised bank in fixed deposit on a long - term basic for 61 months and that the claimants would get periodical interest accruing thereon. The claimants would not but permitted to raise any loan on the said amount.


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