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United India Insurance Co. Ltd. Vs. Revaben Ranchhodbhai Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtGujarat High Court
Decided On
Judge
Reported in[1987]62CompCas700(Guj); (1986)2GLR1205
ActsMotor Vehicles Act, 1939 - Sections 95
AppellantUnited India Insurance Co. Ltd.
RespondentRevaben Ranchhodbhai Patel and ors.
Appellant Advocate P.V. Nanavati, Adv.
Respondent Advocate S.J. Oza, Adv.
Cases ReferredPushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co.P.Ltd.
Excerpt:
company - insurance policy - section 95 of motor vehicles act, 1939 - compensation application for death of respondent's son - tribunal awarded compensation in favour of respondents - appeal - in view of apex court decision if any contractual liability undertaken apart from statutory liability under section 95 insurance company answerable for that contractual liability de hors statutory liability under section 95 - insurance company agreed to indemnify insured against all sums in respect of death or bodily injury to any person arising out of use of motor vehicle - damages asked for passengers covered by said policy - schedule to policy did not prescribe any limitation for answering such claim of any person - held, liability imposed upon insurance company by tribunal correct - appeal..........the liability of the insurance company is limited to the extent of rs. 5,000 as provided under the motor vehicles act, 1939, that the deceased was a gratuities passenger and was not carried for hire or reward and that, therefore, the insurance company is not liable. it is necessary to refer to the contentions of the other opponent in the claim petition. the tribunal, after discussing the evidence, came to the conclusion that the applicants, who are respondents nos. 1 and 2 herein, are entitled to recover a sum of rs. 20,100 from opponents nos. 1 and 2 in the claim application, together with interest thereon at the rate of 6% per annum from the date of filing of the application till realisation of payment with proportionate costs. as against this award, the insurance company has come.....
Judgment:

Gokulakrishnan, C.J.

1. The insurance company is the appellant. Respondents Nos. 1 and 2 herein came forward with an application for award of compensation for the death of their son. It is the case of respondents Nos. 1 and 2 herein that on June 13, 1978, the deceased was travelling in a rickshaw No. GRS 251 from village Bhat to Sabarmati Tol Naka and when the rickshaw was near the cross-road at Koba Circle and was moving towards Sabarmati Tol Naka, at the time, all of a sudden, the rickshaw turned turtle and due to the accident, the deceased, Ashokkumar Ranchhodbhai Patel, received injuries and thereupon he was removed to the hospital and there he succumbed to the said injuries and died. It was further contended that due to the rash and negligent driving of the third respondent herein, the accident occurred and as a result of which the son of respondents Nos. 1 and 2 expired. The insurance company filed a written statement, inter alia contending that the claim filed by respondents Nos. 1 and 2 herein is exaggerated, that the liability of the insurance company is limited to the extent of Rs. 5,000 as provided under the Motor Vehicles Act, 1939, that the deceased was a gratuities passenger and was not carried for hire or reward and that, therefore, the insurance company is not liable. It is necessary to refer to the contentions of the other opponent in the claim petition. The Tribunal, after discussing the evidence, came to the conclusion that the applicants, who are respondents Nos. 1 and 2 herein, are entitled to recover a sum of Rs. 20,100 from opponents Nos. 1 and 2 in the claim application, together with interest thereon at the rate of 6% per annum from the date of filing of the application till realisation of payment with proportionate costs. As against this award, the insurance company has come forward with the present appeal. Mr. P.V. Nanavati, learned counsel appearing for the insurance company, submitted that the insurance company's liability as regards the passenger who was travelling in the vehicle which was involved in the accident is limited to Rs. 10,000 and hence the award of Rs. 20,100 made by the Claims Tribunal cannot be sustained.

2. As far as the present case is concerned, we have gone through the insurance policy, the cover note and the facts of the case. The insurance policy under section II deals with the liability answerable by the insurance company. It states:

3. Subject to the limits of liability, the company will indemnify the insured against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of---....

4. Thus, we find the words subject to the limit of liability and the words all sums. This was the subject-matter of interpretation by a five judges Bench of our High Court in First Appeal Nos. 1439, 1440 and 1441 of 1979 dated January 25, 1985 (United India Fire and General Insurance Co.Ltd. v. Bhagwanji Nathubhai (1987) 62 Comp Cas 675 (Guj)). In that judgment, the Bench observed as follows (at p.679):

5. The appellant insurance company pleads special defence on the basis of the condition in the insurance policy which excludes use of the insured vehicle for carrying passenger for hire or reward. Now, so far as the policy, exhibit 48, is concerned it is an office copy of the insurance policy produced by the appellant company itself. Section II of the policy, exhibit 48, refers to the liability to third parties. It states as under:

6. Subject to the limits of liability the company will indemnify the insured against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of--

(i) death of, or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle.

(ii) damage to property caused by the use (including the loading and/or unloading) of the motor vehicle.

(a) The company shall not be liable in respect of death/injury or damage caused or arising beyond the limits of any carriage-way or thoroughfare in connection with the bringing of the load to the motor vehicle for loading thereon or the taking away of the load from the motor vehicle after unloading therefrom.

(b) Except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939, the company shall not be liable in respect of death of or bodily injury to any person in the employment of the insured arising out of and in the course of such employment.

(c) Except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939, in relation to liability under the Workmen's Compensation Act, 1923, the company shall not be liable in respect of death of, or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the motor vehicle at the time of the occurrence of the event out of which any claim arises.

(d) The company shall not be liable in respect of damage to property belonging to or held in trust by or in the custody or control of the insured or a member of the insured's household or being conveyed by the motor vehicle.

(e) The company shall not be liable in respect of damage to any bridge and/or weighbridge and/or vaiduct and/or any road and/or anything beneath by vibration or by the weight of the motor vehicle and/or load carried by the motor vehicle.

(f) The company shall not be liable in respect of damage to property caused by sparks or ashes from the motor vehicle or caused by or arising out of the explosion of the boiler of the motor vehicle.

(g) The company shall not be liable in respect of death or bodily injury caused by or arising out of the explosion of the boiler of the motor vehicle unless such death or injury is caused by or arises out of the use of the motor vehicle in a public place in India within the meaning of the Motor Vehicles Act, 1939.

7. Now, a look at the aforesaid terms of the policy shows that subject to any other prescribed limits of liability in any other part of the policy, the company has agreed to indemnify the insured against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of death of, or bodily injury to any person caused by or arising out of the use of the motor vehicle. These terms are very wide in nature and would ex facie cover the claims in the present case. Mr. P.V. Nanavati, for the appellant also fairly stated that none of the terms (a) to (g) would cover the present case. If that is so, it must be held that in the light of the aforesaid terms of the policy, if any claim arises in connection with the death of, or bodily injury to any person caused by or arising out of use of the motor vehicle, such claim would be protected by the insurance cover unless of course there are any other limits of liability prescribed in the policy elsewhere. For that purpose, Mr. Nanavati invited our attention to the column on the bottom of the schedule annexed to the policy, exhibit 48. That column refers to limitation as to use. A rubber stamp affixed in that column refers to public carrier. The rubber stamp reads as under:

8. Use only under, a public carrier's permit within the meaning of the Motor Vehicles Act 1930.

9. The policy does not cover--...

(3) use for the conveyance of passengers for hire or reward.

10. It is obvious that the aforesaid rubber stamp found in the copy of the policy, exhibit 48, refers to limitation as to use of the public carrier. Now, it is an admitted position between the parties that the insured vehicle in question is not a public carrier but a private carrier goods vehicle. Under these circumstances, the aforesaid rubber stamp affixed to the copy of the policy, exhibit 48, laying down limitation as to use will not apply to the vehicle in question. May be that a wrong rubber stamp might have been affixed by the personnel of the insurance company while issuing the insurance policy. Be that as it may, the fact remains that so far as copy of the insurance policy produced by the insurance company itself at exhibit 48 is concerned, there is no proper rubber stamp covering the vehicle in question and laying down any special condition restricting its use or laying down any limitation as to its use. The result is that it must be held that there is no limitation as to use or no special condition about the same affixed to the policy in question which covers the insured vehicle. If that is, so, it must be held on account of the general wording of clause 1 of section II of the insurance policy, extracted above, that the insurance company in its wisdom extended the contractual coverage of insurance to all claims arising on account of death of or bodily injury to any person caused by or arising out of the use of the insured vehicle. Once it is so held it is obvious that the insurance company will be liable to answer the claims not on account of any statutory requirements of coverage of such claims but on account of the extension of contractual coverage of insurance on the express wording of the insurance policy itself. The rubber stamp regarding public carrier as affixed in the column laying down condition as to limitation as to use being irrelevant, will remain inoperative and otiose.

11. On all fours, the said decision applies to the facts of this case and the clauses mentioned therein are in pari materia with the clauses mentioned in the policy in question. Bearing in mind the above said principles enunciated by the Full Bench, we can now look at the insurance policy and the cover note. We have also extracted section II of the insurance policy wherein it is stated that the insurance company is liable for all sums subject to the limits of liability mentioned cribed by the insurance company for answering the claim of the insured in the schedule to the policy. In the schedule to the policy under the caption limits of liability, we find the figure 50,000 is noted. In the Supreme Court decision in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co.P.Ltd., AIR 1977 SC 1735, the Supreme Court has clearly laid down that if there is any contractual liability undertaken apart from the statutory liability under section 95, the insurance company is answerable to that contractual liability de hors the statutory liability under section 95. In the insurance policy, the insurance company has agreed to indemnify the insured against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person caused by or arising out of use (including the loading and/or unloading) of the motor vehicle.

12. This liability wherein the insurance company has taken on itself to answer was exactly the subject-matter of interpretation by the Full Bench referred to above and the said Full Bench has held that the damages asked for the passenger of the vehicle are covered by the said policy. We have already found that the schedule to the policy has not prescribed any limitation for answering such claim of any person. Hence, the liability imposed upon the insurance company by the Tribunal, in our view, is correct and cannot be interfered with. For all these reasons, the appeal is dismissed. No costs.


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