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National Insurance Company Vs. Rajendra Hematsinh and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtGujarat High Court
Decided On
Judge
Reported in2(1985)ACC494
AppellantNational Insurance Company
RespondentRajendra Hematsinh and ors.
Cases ReferredMotor Vehicles Insurance Company v. J.K. Modi
Excerpt:
- - bus which was coming from opposite direction with speed had not stopped at the safe distance inspite of the signals given by him he relied upoa the evidence of number of witnesses as well as panchnama and the complaint filed against takhubhai......said bus, are liable to (sic) 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 rashly and negligently due to which the accident occurred is not challenged.5. the learned advocate for the appellant insurance company has vehemently contended that at the time when the accident took place the driver of the luxury bus was not having valid permission or authorisation from the r.t.o. office 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 exh. 70 which is the policy the limitation as to use of the vehicle is only as a contract carriage. therefore he submitted that.....
Judgment:

M.D. Shah, J.

1. The Insurance Company has filed this group of First Appeals which arise out of the common Judgment and order dated 21st 'October 1978 passed by the motor accidents claims Tribunal, Rajkot District at Rajkot in various claims petitions filed by the claimants. In First Appeals Nos. 1047/79, 1050/79 and 1066/79 the claimants have filed cross-objections for enhancement of the compensation. At the time of hearing of taese appeals, the learned advocate for the claimants has submitted that he may be permitted to redice the claims in the cross-objections. The permission is granted and he has reduced the claims in the aforesaid cross-objections at Rs. 8,000/-.

2. These claims petitions arise out of the accident which took place on 12-5-1977 at about 3-30 p.m. oa Uplete-Porbandar Highway near village Morkheda between the private bus No. GTX 3148 and S.T. bus No. GTE 3984. For the marriage of Gandalal Nathabhai Gajera a private luxury bus No. GTX 3148 was hired and the marrige party proceeded from village Makhatimbi for village Makhiyala in the early hours of 12-6-1977. After the marriage was over, the marriage party started at about 3-00 p.m. from village Makhiyala for going to Makhatimbi. Takhubhai Lakhubhai Jadeja was the driver of the said bus. At about 3-30 p.m. the S.T. bux No. GTE 3984 was going towards Kutiyana and at a distance of about 2 to 3 kms. from Upleta Near Makhatimbi village the accident took place. Because of the accident one member of the marriage party died aad several other persons received injuries. 9 passengers travelling by S.T. bus died and some others also received injuries. The driver of the S.T. bus also died on the spot. The injured persons persons were removed to the Upleta Hospital aod there after some of them were taken to Junagadh Hospital. In these matters it is an admitted fact that the accident took place at about 3-30 p.m. on 12-5-1977 on Highway near Morkhada village between the luxury bus which was proceeding from Makhatimbi towards village Makhiyala and S.T. bus No. GTE 3984 which was proceeding towards Kutiyana.

3. The Accidents claims Tribunal after raising the necessary issues arrived at the conclusion that Takhubhai Lakhubhai driver of the luxury bus, was solely responsible for the accident that he drove the said bus rashly and negligently which caused the accident. He held that there was no contributory negligence on the part of the of the ST. Bus and that there was no rashness and negligence on the part of the deceased Hematsinh Nanbha, driver of the S.T. Bus. The Tribunal rejected the contention of the driver Takhubhai that one part was going ahead of his bus and at the time when he was over- taking the car, the accident took place because the S.T. bus which was coming from opposite direction with speed had not stopped at the safe distance inspite of the signals given by him He relied upoa the evidence of number of witnesses as well as panchnama and the complaint filed against Takhubhai. On this basis the learned Judge arrived at the conclusion that the owner of the luxury bus, driver of the luxury bus and the National Insurance Company, insurer of the said bus, are liable to (sic) 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 rashly and negligently due to which the accident occurred is not challenged.

5. The learned advocate for the appellant Insurance Company has vehemently contended that at the time when the accident took place the driver of the luxury bus was not having valid permission or authorisation from the R.T.O. Office 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 exh. 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)(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 breach of a specified condition in the policy which are 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 purpose 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 bus was used for a purpose 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 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) defines 'Contract Marriage' 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 a whole at or for a fixed or agreed rate or sum. Now, in this case it is a proved fact that the aforesaid bus was used as a contract carriage. In the deposition of Gandalal Nathalal exh. 83 he has stated that they took on hire bus for carrying marriage party from village Makhatimbi. He had agreed to pay Rs. 465/- as hire charges to Ram Transport Company, the owner of the luxury bus. In the said bus on 12-5-1977 they went to Makhiyala. The accident took place when they were returning from Makhiyala to their village Mekhatimbi at about 3.30 p.m. There is no dispute about the fact that the bus was hired for carrying the marriage party. In this view of the fact it cannot be said that the bus was not used as contract carriage. Once it is held that the bus which was a public service vehicle was used as contract carriage, then it cannot be said that there is breach of Section 96(b)(c). It cannot be said that the vehicle was used for a purpose not allowed by permit. The conditions of the policy nowhere lay down that the vehicle cannot be used unless there is a permit by the R.T.O. Office. In this view of the matter, it is not necessary to refer and decide whether the permit was obtained by the owner of the vehicle or his agent on 12-5-1977 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 R.T.O. Office, that the necessary amount was deposited after 2-30 p.m. on 12-6-1977 and this 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 such condition is Laid down in the policy, it is not necessary for us to decide the said question because the limitation which is prescribed under the policy is to use it only as a contract carriage at the relevant time. In the case there is no evidence on record to show that the vehicle was used for a purpose not allowed by the permit.

8. The learned Advocate for the appellant rarely conceded that in view of the decision in Motor Vehicles Insurance Company v. J.K. Modi : [1982]1SCR860 , 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 cumber 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. 50,000/- in all would not survive.

9. The learned advocate for the appellant further submitted that in First Appeal No. 1045/79 the heirs of the deceased driver of the S.T. bus have received Rs. 18,000/- from the S.T. Corporation under Workmen's Compensation Act and therefore, their application under the Motor Vehicles Act is not maintainable Under Section 110-AA of the Motor Vehicles Act. Section 110-AA gives an option for claiming compensation and provides that where the death of or bodily injury to any person given rise to a claims for compensation under the Motor Vehicles Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claims 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 on record to show that the h irs of the deceased received compensation under the Workmen's Compensation Act. The only evidence on record is that of Bai Nanaba widow of Hematsinh. She has stated in her deposition that from the S.T. Corporation she hai received Rs. 6,000/- and Rs. 12,000/- were deposited in the name of minors. She has also stated that no applicat ion was filed by her or on behalf of minors for getting compensation. In the cross-examination she has stated that she got the said amount of Rs. 18,000/-in all through the Labour Court. No effort was made by either by the owner of the bus or by the Insurance Company to produce on record any application filed by the widow of the deceased driver to prove that an application under the Workmen s Compensation Act was filed by the heirs of the deceased. Therefore in our view it cannot be said that the learned Tribunal committed any error in holding that there was no evidence on record to hold that the heirs of the deceased had 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, 1064 to 1965 and 617 of 1979 are dismissed with no order as to costs.

12. First Appeals Nos. 1047, 1050, 1052, 1053 and 1066 of 1979 are dismissed with costs in respect of claimants only. The other respondents will bear their own costs.

13. With regard to cross objections in First Appeal No. 1047/79, 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 conventional amount i.e. in all Rs. 33,000/-. This claims petition is filed by her husband and minor sons and daughters. It is the say of Ranchhodbhai that deceased Santokben was aged about 40 years on the date of the accident and she was doing business on the date of the accident. She was bringing vegetables from Upleta and was selling the same at village Varjang Jaliya. It is his say that her income from the said business was Rs. 15/- per day. Now, for proving the fact that she was earning Rs. 15/- per day. He has not adduced any evidence, nor has he proved the fact as to 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. In our view, taking into consideration the overall view of the facts it would be reasonable to hold the she might be contributing in all Rs. 200/- per month to the family i.e. in all Rs. 2,400/- per year. Applying the multiplier of 15, the total amount comes to Rs. 36,000/-. Therefore, in our opinion, the claimants are entitled to have additional amount of Rs. 6,000/- with interest and proportionate costs.

14. In the First Appeal No. 1050/79 the claimants are parents of the deceased Jamnadas Arjan who was aged about 25 on the date of the accident. The learned Tribunal has awarded Rs. 27,000/- for pecuniary loss and Rs. 3,000/- as conventional amount i.e. in all Rs. 3,000/-. At the relevant time deceased Jamnadas was unmarried and was serving in Day-light Ceramics Factory. It is the say of Arjan that the deceased was earning Rs. 7.85 per day from the Factory and Rs. 70/- per month by doing part time work as a Wire-man. Arjan has also deposed that his son had passed S.S.C. Examination and had done Certificate Course as a Wireman. The learned Tribunal took into consideration that he might be drawing in all Rs. 200/- per month and out of it he must be contributing Rs. 151/- for maintenance of the family. Taking into consideration the overall picture, additional amount of Rs. 6,000/-is required to be awarded. In this count, therefore, the claimants are entitled to have additional amount of Rs. 6,000/- with interest and proportionate costs.

15. With regard to cross-objections in First Appeal No. 1066/79 the sons of the deceased Santokben filed the claims petition. It is an admitted fact that on the date of the accident the deceased Santokben was aged about 47 and that she was working as an agricultural labourer. The learned Tribunal has awarded Rs. 17,400/- in all i e. Rs. 14.400/- pecuniary loss and Rs. 3,000/-as conventional amount. Taking into consideration the overall picture, we consider that the additional amount of Rs. 6,000/- should be awarded to the claimants on the head of pecuniary loss i.e. the claimants are entitled to have Rs. 20,400/- for pecuniary loss and Rs. 3,000/- as conventional amount i.e. in all Rs. 22,400/-. The result would be that they are entitled to have additional amount of Rs. 6,000/- with interest and proportionate costs.

16. 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 awarded by this Court should be a deposited by the Tribunal in a Nationalised Bank in Fixed Deposit on a long term basis for 161 months and that the claimants would get periodical interest accruing thereon. The claimants would not be permitted to raise loan on the said amount.

17. The cross-objections in all the above three First Appeals are partly allowed to the aforesaid extent.


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