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National Insurance Co. Ltd. Vs. Smt. Nathibai Chaturbhuj and ors., - Court Judgment

LegalCrystal Citation
SubjectCompany;Motor Vehicles
CourtGujarat High Court
Decided On
Case NumberFirst Appeal Nos. 144, 145 and 146 of 1977
Judge
Reported in[1986]60CompCas283(Guj)
ActsMotor Vehicles Act, 1939 - Sections 95(1), 95(2) and 96(2)
AppellantNational Insurance Co. Ltd.
RespondentSmt. Nathibai Chaturbhuj and ors., ;parvatibai Nathabhai and ors. and ;kanji Damji and ors.
Appellant Advocate H.V. Chhatrapati, Adv.
Respondent Advocate S.D. Shah, Adv. for respondents Nos. 1 to 3 in F.A. No. 144 of 1977, Nos. 1 to 8 in F.A. No. 145 of 1977 and No. 1 in F.A. No. 146 of 1977 and;
DispositionAppeal dismissed
Cases ReferredNew India Assurance Co. Ltd. v. Smt. Nathiben Chatrabhuj
Excerpt:
- - in absence of the same, the insurer cannot avoid the liability and hence the contention in the present case must fail. there is no other defence available to the insurer in the present appeal and hence the appeals fail and are dismissed with no order as to costs......vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, whether a passenger on payment will get the benefit of the statutory insurance ?'2. and the full bench has answered the question as under (at p. 589) :' the liability in respect of the death of, or bodily injury to, a passenger carried for hire or reward on the insured vehicle when the accident giving rise to the claim occurred, including the liability in respect of the owner or hirer of the insured vehicle or his bona fide employees within the permissible limit, will be covered by the statutory insurance either by virtue of section 95(1)(b)(i) read with the second clause of the proviso or by reason of section 95(1)(b)(ii) of the act. in such a case, the insurer will have to.....
Judgment:

Mehta J.

1. These three appeals by the insurer challenge the awards made by the Motor Accidents Claims Tribunal in three cases arising out of the same accident. The matter had gone to the Full Bench on the question of liability of the insurance company and that judgment is New India Assurance Co. Ltd. v. Smt. Nathiben Chatrabhuj [1984] 55 Comp Cas 568 (Guj) [KB] and the question which was referred to the Full Bench was as under (at p. 570):

' 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, whether a passenger on payment will get the benefit of the statutory insurance ?'

2. And the Full Bench has answered the question as under (at p. 589) :

' The liability in respect of the death of, or bodily injury to, a passenger carried for hire or reward on the insured vehicle when the accident giving rise to the claim occurred, including the liability in respect of the owner or hirer of the insured vehicle or his bona fide employees within the permissible limit, will be covered by the statutory insurance either by virtue of Section 95(1)(b)(i) read with the second clause of the proviso or by reason of Section 95(1)(b)(ii) of the Act. In such a case, the insurer will have to pay to the person entitled to the benefit of the award, the sum assured, which shall not be less than the sum specified in Section 95(2), subject, however, to the right of the insurer to disclaim the liability, inter alia, under Section 96(2)(b)(i)(a). The insurer, in order to successfully disclaim his liability on that ground, will have to establish :

1. that on the date of the contract of insurance, the insured vehicle was expressly or impliedly not covered by a permit to carry any passenger for hire or reward ;

2. that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward, and

3. that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward.

If all these, facts are established by the insurer, the benefit of statutory insurance will not be available in respect of such passenger.'

3. In the present case, the insurer has not got produced and proved the permit to show that the permit did not provide for carrying passengers for hire or reward. In absence of the same, the insurer cannot avoid the liability and hence the contention in the present case must fail. There is no other defence available to the insurer in the present appeal and hence the appeals fail and are dismissed with no order as to costs.


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