1. In these two appeals arising 'under Section 110-D of the Motor Vehicles Act, 1939 the original claimants of the two companion claim petitions as filed before the Motor Accident Claims Tribunal, Kaira seek upward revision of damages as awarded to them by the claims Tribunal. The Insurance Company which is respondent No. 3 in First Appeal No. 4 of 1978 has filed cross' objections. Similarly respondents Nos. 1 & 2 in both the claim petitions who are the driver and the owner of the offending truck which was involved in the accident in question have filed cross objections, xxx . xxx xxx
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(i) Factual backdrop
3. On the night of 9th March 1976 at about 9.30 P. M. Motor Truck No. GTG 2266, driven by the original opponent No. 1, respondent No. 1, in both these appeals met with an accident near Kaira town in Kaira District As a result of -the said accident, two passengers sitting in the driver's cabin in the said truck were thrown out on the, road from the aforesaid running truck. One of them namely Ajit succumbed to his injuries while the other fellow traveller Gajendrasing Ramsing received accidental injuries which fortunately for him were comparatively trivial in nature. The aforesaid, accident resulted into two claim petitions before the Motor Accident Claims Tribunal, Kaira at Nadiad. The Motor Accident Claim Petition No. 182 of 1976 came to be filed by the parents of the deceased Ajit who prayed for a total award of Rupees 30,000/- for damages under relevant heads from the driver of the truck, its owner and the Insurance Company which had insured the said truck. All the three of them were joined as respondents Nos. 1, 2, & 3 respectively. Similar Claim Petition No. 213 of 1976 was filed by the injured Claimant, Gajendrasing Ramsing against the same set of opponents claiming Rs. 9,999/- by way of damages. The claimants contended that the accident was caused oil account of rash and negligent driving of the truck by its driver, original opponent No. 1. Their case was that while it was being driven between Bawla and Kaira, it dashed against a pillar of the Kaira Bridge and as a result thereof, deceased Ajit and the injured claimant were thrown out. Their precise case in claim petitions was that one Ranjitsingh was relative of the claimants in Claim Petition No. 182 of 1976 who are the parents of the deceased Ajit. Said Ranjitsingh was in need of wheat for his agricultural operations. Deceased Ajit had contracted with opponent No. 2, the owner of the truck, to carry his wheat from village Radhu to Kaira. Under these circumstances, the claim petitions were filed praying, for different amounts of damages from the same set of opponents as mentioned above. Both these claim petitions which arose out of the same accident were tried together by the Tribunal and evidence was recorded ix,, common and both the claim petitions were consolidated.
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11. xxx The aforesaid evidence regarding the actual occurrence of the accident clearly brings to light one salient fact that the deceased Ajit, injured claimant Gajendrasing and Mahesh were travelling in the truck in question and at the time when the truck met with the accident the deceased Ajit, Gajendrasing were sitting in the driver's cabin. Injured Ganjendrasing clearly admitted in his cross examination that: the door of the driver 's cabin was of sliding nature and they had not closed the door. Reference to door obviously points out the fact that it was on the opposite side of the driver's seat namely on the left side of the driver's cabin by the side on which the deceased as well as the injured claimant Gajendrasing were sitting. It is, therefore, evident that even though the said side door could have been shut, the injured claimant as well as the deceased had not thought it necessary to close the door. That was certainly a rash and negligent act on their part. If the door by their side was closed by them, they would never have been, thrown out, however rash and negligent would have been the driving of the truck at the relevant time. The fact that both of them were thrown off from the running vehicle highlights the fact that there was sufficient open space an the left side of the driver's cabin through which they could be thrown out. It is obvious that though the side door of the driver's cabin was of sliding type, the said door was not closed by them. xx xx xx It is, therefore, clear that in the causing of accidental injuries the contribution of injured claimants was no insignificant; but it appears to be of the same magnitude as that of the rash and negligence on the part of the driver of the vehicle. The Tribunal in para 6 of its judgment has noted the fact that the deceased as well as the injured Gajendrasing were grown up boys and were studying in college and if they were travelling by a truck and the door was of sliding type, they should have made sure before the truck started that the door was closed. The Tribunal further stated that after the accident the truck had proceeded ahead. In these circumstances, the extent of contributory negligence on the part of both the victims-deceased Ajit as well as injured Gajendrasing-was assessed by the Tribunal at 50%. In the light of the aforesaid evidence which I have discussed, the said finding reached by the Tribunal appears to be quite justified. It is not possible to accept the alternative contention of Mr. Quershi that the extent of contributory negligence on the part of the concerned victims in any case may be sliced down to 25%. From the evidence on record of this case, it is clear that the cause of the accidental injuries visited upon both the victims was the rash and negligent act of the driver of the vehicle. But in causing accidental injuries, equally negligent were the concerned victims who never cared to close the cabin door which was by their side. Thus, their contribution cannot be said to be in any way less than that of the driver of the vehicle when the accident in question saw the light of the day. The alternative submission of Mr. Qureshi has, therefore, got to be repelled and the findings reached by the Tribunal on issues Nos. 1 & 2 to the effect that the accident was caused on account of equally rash and negligent act on the part of the driver of the truck as well as on account of the negligence of the concerned victims have got to be upheld. In this connection it is worthwhile to have a look at the observations found in Charlesworth on Negligence, Sixth Edition, London Sweet & Maxwell at page 902. The learned author while considering the question of contributory negligence of passengers travelling in motor vehicles has made the following pertinent observations :
904. Passengers. Passengers, in common with their driver, owe a duty of care to each other and to other users of the highway such as that already dealt with regarding the opening of doors so as not to endanger other persons or things. It is submitted that a passenger's duty is not limited just to such situations but, occasionally, could properly be extended to include any act or omission in assisting the driver, especially where the passenger is perhaps an experienced road user himself. Bearing in mind the obvious limitations of what any passenger can actually do should his driver be driving f furiously or, merely negligently at the time, occasions could well arise when something could be done such as advising or giving the driver warnings of dangers, in which event a failure so to do may amount to contributory negligence on his part. In the interest of safety generally to all road users including himself, the passenger, either on his own initiative or at the instigation of his driver, may or ought to assume a role of responsibility and participation. Examples of such instant are his keeping some particular look out, which he may be better able to do than the driver i. e. close on the nearside of the vehicle or in an area which is in the driver's 'blind spot,,, giving advice or directions, which are not misleading to the driver, look and listen for approaching traffic, including trains at a level crossing, and, where he has seen the inception of a danger developing, which the driver apparently has not seen or reacted to, at all, failing to warn the latter of it. Nonetheless the courts have been most reluctant to make any findings of contributory negligence against a passenger, even where his proper participation might well have made up as far as possible for the driver's incompetence and, probably, have avoided an accident.
A passenger, who accepts a lift in a motor car, may be held guilty of contributory negligence if either he knew that the driver had consumed an excess amount of alcohol or, knowing that he would be given a lift afterwards, he had accompanied the driver on a bout of drinking. For the passenger's failure to wear a safety precautions, such as a seat belt, see Froom v. Butcher, also 866, ante, and Chap. 16,1200, post.'
In this connection I may also refer to a decision of the Court of Appeal in England in the case of Froom v. Butcher reported in the Law Reports series 1976 QBD 286. The aforesaid judgment has been referred to in the passage of Charlesworth on Negligence that I have already extracted above. In the aforesaid case, the Court of Appeal, in England presided over by Lord Denning and two other learned Judges had to consider the question regarding contributory negligence -of the plaintiff who was driving his car along with his wife and his daughter as passengers in the car when they suffered injuries on account of the collision of the car with the car driven by defendant. Considering the question of contributory negligence of the plaintiff Lord Denning observed that negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to other& Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might hurt himself. In the same judgment, Lord Denning on analysing the cause of the damage on account of the accident in question observed as under:
'The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in, part by the failure of the Plaintiff to wear a seat belt. if the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the Court thinks just and equitable'.
It is, therefore, obvious that the deceased and the injured claimant in the present case were clearly guilty of contributory negligence as they ought to have clearly foreseen that if they allowed the truck driver to drive with great speed without taking sufficient precaution by closing the side door, they can be said to have acted not as prudent persons but as those who were utterly careless about their own safety. The accident can be said to have been caused by the rash and negligent driving of the truck by its driver but the damage caused to these victims partly rests on their own shoulders as they were negligent in not closing the side door of the driver's cabin in which they were travelling at the relevant time.On the facts of the present case, the extent of their contributory negligence cannot be held to be in any manner less than50%.
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VII. Liability of the Insurer.
16. The Insurance Company, original opponent No. 3 has filed cross objections in First Appeal No. 4 of 1978 contending that it is not liable to satisfy the award that may be passed in favour of the claimant in the present case. Mr. P. V. Nanavaty, the learned Advocate appearing for the Insurance Company, respondent No. 3, herein, has contended that the deceased Ajit was a gratuitous passenger in the truck and consequently the Insurance Company was not statutorily liable to cover the risk of injuries caused to such a passenger and was not, therefore, liable to indemnify the injured against such risk. In that connection strong reliance was placed by Mr. Nanavaty on the judgment of the Supreme Court in the case of Pushpabai v. Ranjit Ginning and Pressing Co, P. Ltd., AIR 1977 SC 1735 (supra).
17. Mr. Qureshi, the learned Advocate appearing for the claimants raised a preliminary contention urging that the Insurance Company cannot be permitted to make out a new case for the first time in this appeal. Mr.Qureshi pointed out that in the written statement which was filed by the Insurance Company no such contention was taken Naturally, therefore, there was no issue framed on that point and attention of the parties was not focussed on this question. Apart from that, even before the Tribunal at the stage of argument no such contention was urged on behalf of the Insurance Company. Under these circumstances, there is absolutely no evidence on the record of this case to point out whether the deceased was a gratuitous passenger or whether he was being carried on the truck as hire of the goods as the claimants have clearly mentioned in the claim petition. In para10 of the claim petition it has been mentioned that the deceased had entered into a contract for carrying his wheat from village Radhu for onward transport to Kaira. Mr. Qureshi, therefore, submitted that if the Insurance Company had taken up such a contention before the Tribunal, proper evidence could have been led to show that deceased Ajit was not a gratuitous passenger and in fact he was being carried on the truck in question under the contract of employment for hire or reward. The said contention would squarely raise highly disputed question of fact which would require investigation of facts. Mr. Qurashi further submitted that if the Insurance Company had taken up such a contention, the claimants could have shown by leading proper evidence that the Insurance Company by its contract offered a wider coverage of risk of persons carried in the insured vehicle. Even the insured could have produced such relevant evidence and this opportunity is lost to the claimants as well as to the insured driver of the vehicle. Thus the Insurance Company by its own inadvertent attitude on this point, has clearly waived the objection which it seeks to take out for the first time by way of filing cross objections *in this appeal and hence such an objection does not deserve to be entertained on merits. Mr. M. C. Shah for the insured-owner of the vehicle also submitted on similar lines and contended that the Insurance Company should not be permitted to raise such a contention for the first time in appeal, otherwise serious prejudice will becaused to the concerned parties as they could not lead proper evidence in the absence of specific contention which, the Insurance company was required to promptly take up at the proper stage before the Tribunal.
18. The aforesaid preliminary. objection raised by Mr. Quershi for the claimants and as supported by Mr. Shah for the insured is well founded. It is obvious that the Insurance Company did not take up such a contention at the proper time. Neither in its written statement did it raise such a contention nor-did it seek any issue on the point before the Tribunal., the result was that the concerned of ' her parties did not get any opportunity to controvert this contention by leading proper evidence. In fact parties, attention was not focused on this point at all. Not only that even at the stage of arguments before the tribunal the Insurance Company did not agitate such contention. It must therefore be held that the Insurance Company had clearly waived its objection regarding its liability to cover the risk in question. It is further pertinent to not that apart from the fact that the Insurance Company has not raised such a contention, no party seems to have made any effort to call for the Insurance, Policy on the record of this case. If the Insurance Policy was brought on the record of this case it could have shown whether the Insurance Policy had offered wider coverage regarding passenger's risk or not. Consequently, the claimants as well as the insured will be materially prejudiced if the Insurance Company is permitted to raise such a contention which would require detailed - investigation into various facts as indicated above. Therefore, on facts, it must be held that the Insurance Company had waived its present objection and had acquiesced in its liability to satisfy the entire award which the court thought fit to grant to the claimants. I, therefore, do not propose to consider on merit the objection raised by the insurance Company in its cross objection.
19. In fact the procedure to be adopted in such a contingency. is now well settled. In First Appeal No. 583 of 1977 with First Appeal No. 584 of 1977, decided by a Division Bench of this Court consisting of myself and S. L Talati, J., on September 4, 1980, we. had an occasion to consider a similar contention raised for the Insurance Company for the first time in appeal. RV my judgment dated September 4, 1980, I pointed out on behalf of the Division Bench that such a -contention was, not open to the Insurance company for the first time in appeal as it required serious investigation of facts and the insured as well as the claimants will be prejudiced if such a new contention was permitted to be urged on behalf of the Insurance Company. Mr. P. V. Nanavaty the learned Advocate appearing for the Insurance Company in the present case had himself raised such contention before us in the aforesaid first appeals. He tried to submit for the first time in appeal before us that as the claimants and the insured were gratuitous passengers in the pick up van the Insurance Company was not liable to satisfy the award as per the ratio of the decision of the Supreme Court in the case of Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. Pvt., AIR 1977 SC 1735 (supra). We noted that such a contention was not raised by the Insurance Company in the written statement nor was it reflected by issues and no evidence was led before the Tribunal on the point and no contention was urged on that behalf in argument before the Tribunal. Having noted these facts, which are identical with the facts of the present case, we came to the following conclusion:
'So far as the aforesaid two contentions are concerned, we find that these contentions which are sought to be taken up for the first time at the argument stage of these appeals, seek to raise certain question which will necessitate investigation of facts. As we have already stated above, the insurance company did not think it fit to take up these contentions before the claims Tribunal at any stage from the written statement onwards till the stage of arguments. Thus, the claimants got no opportunity to meet these contentions on merits. The aforesaid contentions will require investigation into the question as to whether the concerned passengers were gratuitous passengers or not. Secondly, whether they were on the vehicle on account of any officaal duty or business or on account of any contract. Further question of fact would also arise as to whether the insurance company had charged additional premium to cover the risk for an accident caused to such passengers who may be travelling in the concerned insured vehicle or not. AII these questions could have been thrashed out on evidence if the insurance company had taken up these contentions promptly in its written statement But it did not choose to do so. Even apart from the said contentions not being taken in the written statement and not being made to form part of an issue for decision of the Claims Tribunal, even at the stage of arguments before the Claims Tribunal, no such contentions were raised. Thus, it appears clear to us that the insurance Company had waived these contentions before the Claims Tribunal. Hence, it is not open to the insurance company now to dig up these contentions and press them in service for the first time at the stage of arguments before this court. We, therefore, do not think it fit to permit the insurance company to take up these new contentions for the first time at this stage by mere arguments. We also find that to permit the insurance company to do so would amount to causing serious prejudice to the claimants inasmuch as all the relevant evidence could not naturally be led by the claimants to rebute these contentions as they were not taken up at proper time.'
20. The aforesaid decision of the Division Bench of this court clinches the Preliminary objection in favour of the appellant claimants as well as the insured. It must, therefore, be held that the Insurance Company in the present case is not entitled to take up such an objection for the first time, by way of cross objection in this appeal and it must be taken to have been waived and the Insurance Company must be held to have acquiesced in its full liability for satisfying the entire awarded claim of the claimants.
21. Before parting, I must mention two submissions raised by Mr. Nanavaty for the Insurance Company so far as the present question in controversy is concerned. He stated that the earlier view of, this court in Sakinabibi v. Gordhanbhai Prabhudas Patel's case reported in (1974) 15 Guj LR 428 was being -followed till the Supreme Court in Pushpabai Parghottam. Udeshi v. Ranjit Ginning and Pressing Co. Pvt. Ltd., AIR E1977 SC 1735 (supra) took a different view. Thus the Insurance Company was under the bona fide impression that it was legally liable to cover such passengers' risk. Hence it had not taken up the contention, which it sought to raise in the present appeals as prior to the decision of the Supreme Court in Pushpabai's case (supra) there was no occasion for the Insurance Company to raise such a contention. That may be so. But the question is whether the Insurance Company can be permitted to take up such a contention for the first time in appeal when it did not think it fit to take up such a conlention in the Trial Court for reasons best known to it and waived it. On the question of waiver the conduct of the Insurance Company, whatever may be the motive behind the same, is the only relevant factor. Neither the claimants no the insured can be blamed for the same. If the Insurance Company is now permitted to take up such contention for the first time in appeal it would certainly raise disputed questions of facts and for meeting which, the claimants and the insured had no opportunity to join issues before the Trial Court. The second contention which Mr. Nanavaty wanted to raise was that so fat as the question of wider coverage is concerned, the Insurance Company has not produced the copy of the Insurance Policy, but given an opportunity, the Insurance Company may produce it before this Court. I do not think the Insurance Company can be permitted to adopt the aforesaid course. If the Insurance Company has already got a copy of the Insurance Policy, no one prevented the Insurance Company from producing the same before the Trial Court. Even before this court no application under 0. 41, R. 27 C. P. C. is moved, Hence there is no occasion for me to pronounce upon the merits of such an application. Even otherwise, when the insurance Company has not taken up a specific contention in its written statement, it could never have been permitted to lead any evidence in support of the plea, which was never put forward as a defence. Under these circumstances, the Insurance Company would not have been entitled to produce the Insurance Policy as additional evidence. A further question would also arise whether the Appellate Court was in a position to pronounce effective its judgment in the matter even without such additional evidence. I am broadly indicating the various insurmountable hurdles in the way of the Insurance Company if at all it had sought to produce such additional evidence, but when no such application is before me I need not dilate on the matter any further.
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28. Order accordingly.