Skip to content


United India Fire and General Insurance Co. Ltd., Madurai Vs. M.S. Durairaj and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 78 of 1978
Judge
Reported inAIR1982Mad287; (1982)1MLJ111
ActsMotor Vehicles Act, 1939 - Sections 95, 110B and 110C
AppellantUnited India Fire and General Insurance Co. Ltd., Madurai
RespondentM.S. Durairaj and ors.
Cases ReferredPushpabai Purshottarn Udeshi v. Ranjit Ginning and Pressing Co.
Excerpt:
.....held that a private owner of a car was not bound to insure passengers even if he gave a man lift for hire or reward and that the insurance was compulsory only if a vehicle was as a practice or habitually used for carrying or reward such as motor coaches, private hire cars and the like. according to the learned counsel for the respondent, though it is not compulsory for the owner of a car to insure against the passengers either carried for hire or reward or gratuitously, still he ran take a comprehensive policy to cover such risks, which are required to be covered under s, 95 of the act and that in this case a comprehensive policy having been issued it should be taken to cover the risk of passengers as well. but as already pointed out, the policy on the face of it says that it will..........of the car before the date of the accident. thus the probability is that the driver of the car carried the deceased and other persons in the car, which was proceeding from madurai to kodaikanal only for hire or for reward.11. according to the appellant, the claimants are in any event, not entitled to go behind their pleadings which contain a categorical averment that the deceased was traveling in the car on payment of hire charges and adduce evidence that he was carried in the car gratuitously which is contrary to the pleadings, and the tribunal has no justification or jurisdiction to show any latitude in this regards. it is pointed out by the appellant that even if there is a mistaken averment both in the original claim petition as well as in the reply statement, the court can.....
Judgment:

Ramanujam, J.

1. This is an appeal filed by the United India Fire and General Insurance Co. Ltd., Madurai against the award passed by the Motor Accidents Claims Tribunal in M.A.C.O.P.No. 36 of 1976, at the instance of the claimants-respondents 1 to 8 therein.

2. On 27-10-1975 one Alagappan aged about 32 years, who was a senior clerk of the State Bank of India, Kodaikanal, was returning from Madurai to Kodaikanal, in a car MDA 1194, which was owned by the 9th respondent and driven by the 10th respondent herein. At about 6 a. m. when the car was going in front of the Parayai Mills, gate in Samayanallur on the Dindigul main road, the driver of the car lost control of the vehicle and the car went to the left end of the road and hit against a tree and as a result of the impact the gear rod caused grievous injuries on the stomach of Alagappan. He was immediately taken in a bus to the Government Hospital, Madurai where he died the next day. The said car had been insured with the second respondent (appellant herein) in the original petition before the Tribunal. On the ground that the said accident was due to rash and negligent driving of the car by its driver, the legal representatives of the deceased Alagapparl claimed a compensation of Rs. 75,000, before the Motor Accidents Claims Tribunal, Madurai,

3. In the said claim petition respondents 1 and 3, owner of the car and the driver respectively, remained ex Parte and the claim was resisted only by the Insurer, second respondent. The objection taken by the insurer was that it has been mentioned in the claim petition itself that the car was used for carrying passengers on hire, which was against the terms of the insurance policy the insurer was not liable, that in any event. there was no rashness and negligence on the part of the driver of the car, that the car was proceeding slowly and cautiously on the proper side of the road at the moderate speed of 35 K. M. per hour that there was drizzling at the time and in a turning the car skidded to the left and hit against 13 a tree and that, therefore, the accident 12 cannot be said to be due to rashness and negligence on the part of the driver of the car. It also contended that since the injuries sustained by the deceased were very slight, the claim by the legal representatives of Alagappan for compensation of Rs. 75,000 is highly exaggerated.

4. After going through the counter affidavit filed by the Insurer, a reply affidavit was filed by the claimants, wherein they had again asserted that, Alagappan, Arokiaswami and one Velusami travelled in the car on payment of Rs. 15 as hire charges. Further, they have stated that the deceased Alagappan was getting actually a salary of Rs. 1067 per month at the time of his death.

5. On these pleadings the following two points were set down for consideration by the Tribunal-

1. Whether the accident took place on account Of rash and negligent driving of the first respondent's car by the third respondent?

2. Whether the petitioners are entitled to compensation, and to what, extent and against whom?

6. On the side of the claimants the first claimant had been examined as P. W. 1 and another person, who traveled in the car during the time of occurrence, had been examined as P. W. 2. P. W. 1 had spoken to generally about, the occurrence and the death of his son as a result thereof. He has marked Ex. P. 1, Pay certificate given by the branch manager in relation to pay particulars of the deceased. Ex. P. 2 copy of the post-mortem certificate. Ex. P. 3, extract from the death register. Ex. P. 4, S, S, L. C. book of the deceased, Ex. P. 5 certificate from the branch manager about the date of joining of the deceased in the bank and Ex. P. 6 copy of the Motor Vehicles Inspector's report P. W. 2 had deposed about the facts relating to the accident. On the side of the respondents, no oral evidence wa5 adduced and only Ex. R. 1 the policy of insurance had been marked.

7. On the first point as to whether there was any rashness and negligence on the part of the driver of the car, the Tribunal after analyzing the oral and documentary evidence, above referred to, held that the car was driven in a rash and negligent manner and that the accident was entirely due to such rashness and negligence on the part of the driver of the car, On the second point relating to the quantum of compensation and the person who is liable to pay the same, the Tribunal held that a sum of Rs. 75,000 is a fair and reasonable compensation. In that view, it passed an award for the said sum In favour of claimants 2 to 4 as against respondents 1 to 3. The Tribunal had taken the view that the first claimant being the father of the deceased, and claimants 5 to 8 being his brother and sisters, cannot be held to be dependents or legal representatives and that only the mother and children of the deceased, who are claimants 2 to 4. are entitled to cline the compensation as dependents as well as heirs at law of the deceased. The said award has been challenged by the appellant-Insurer of the car.

8. The main contentions advanced on behalf of the appellant are as follows - (1) That the car, having been used for carrying passengers for hire or reward contrary to the terms of the insurance policy, the insurer is not liable for the accident which had taken place when the car was used for an unauthorized purpose. (2) That even if the car has not been used for carrying the passengers for hire or reward, and the deceased was taken only as a gratuitous passenger the liability of the Insurer will not extend to such gratuitous passengers.

9. In this case, on the first question the learned counsel for the appellant has referred to the claim petition wherein the claimants have stated that the deceased paid hire charges and travelled in the car which was being used as an, illicit taxi. Taking note of this averment in the claim petition itself the Insurance company in its counter had disclaimed the liability on the ground that the car has been used for an unauthorised purpose, At least after seeing the counter statement, the claimants should have waken up, Howtver, the claimants filed a reply statement asserting that the deceased Alagappan was carried in the vehicle on payment of him charges. At the stage of trial, however, the first claimant examined as P. W. 1 deposed that the deceased was given a free lift by the driver of the car from Madurai to Kodaikanal and P. W. 2 had also deposed that himself and two other persons travelled in the car without payment, of any hire charges. An objection was taken by the insurer that oral evidence cannot be let in contrary to the pleadings, The claimants had contended that no doubt a blunder has been committed in preparing the petition since the averments had been made on the representations of the petitioner No. 1 and the petitioner No, 1 had not witnessed the accident properly and he has spoken to hearsay'. According to the claimants, the knew about the free lift only at the stage of trial. The Tribunal accepted the said new stand taken on behalf of the claimants mainly on the basis of the evidence of P. W. 2. The Tribunal felt that as the counsel had expressed regret that the petition had been drafted on a wrong information given by the claimants, and as the counsel had to do justice to his clients and put forward a genuine version of the case in the enquiry, some amount of latitude in the assessment of the averments in the claim petition relating to the use of the car as a taxi had to be allowed and that on the oral evidence of P. W. 2, an independent witness who has also traveled in the car at the time of the accident it must be held that the car was not used as a taxi and the deceased was given only a free lift. The said finding of the Tribunal has been attacked by the appellant as legally unsustainable.

10. We are of the view that the Tribunal is in error in accepting the evidence of P. W. 2 at its face value. It is true P. W. 2 has stated that he and the deceased and another were carried in the car gratuitously form Madurai to Kodaikanal. But it is difficult to accept that statement unless the owner or driver of the car is either related to the persons carried or a close friend of them. The driver or the owner is an admittedly utter stranger to the persons who were carried in the vehicle. It is unlikely that the driver of the car would have agreed to give them free lift from Madurai to Kodaikanal, without any hire or reward. It is not claimed, as a matter of fact, by P. W. 2, that he knew either the owner or the driver of the car before the date of the accident. Thus the probability is that the driver of the car carried the deceased and other persons in the car, which was proceeding from Madurai to Kodaikanal only for hire or for reward.

11. According to the appellant, the claimants are in any event, not entitled to go behind their pleadings which contain a categorical averment that the deceased was traveling in the car on payment of hire charges and adduce evidence that he was carried in the car gratuitously which is contrary to the pleadings, and the Tribunal has no justification or jurisdiction to show any latitude in this regards. It is pointed out by the appellant that even if there is a mistaken averment both in the original claim petition as well as in the reply statement, the court can permit the claimants to have their pleadings amended setting out the correct averments and then allow the claimants to adduce evidence on the basis of the amended pleadings and it is not legally possible for the claimants to adduce oral evidence contrary to their own pleadings. There is considerable force in the submission made by the appellant in this regard,

12. It is well established that a party cannot lie allowed to go behind his pleadings and let in evidence contrary to the same. If the averments in the pleadings, as originally set out, required modification on the ground of mistake in advertence etc, it may be open to the party to have the pleadings amended by taking a leave of the court and then adduce evidence in accordance with the amended pleadings. That being the legal position, we do not see how the Tribunal in this case without having the pleadings amended, permitted the claimants to adduce evidence contrary to the pleadings, Though the Tribunal in permitting oral evidence to be adduced contrary to the pleadings, has obviously been motivated by some sympathetic considerations to be shown to the claimants and their counsel, We do not see how the Tribunal can on grounds of sympathy go behind the statutory procedure. It is true that Sec. 110-C of the Motor Vehicles Act says that 'in holding any enquiry under S. 110-B, the Claims Tribunal, may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit'. But, the said express Power given to the Tribunal to formulate its own procedure has to be consistent with rules of natural justice and must not contravene the provisions of law. If the oral evidence is permitted to be adduced by one party contrary to his own pleadings, the other party will naturally be taken by surprise and there will clearly be failure of the rules of natural justice. It cannot be disputed that the Tribunal has got the power to permit a party to amend the pleadings. In Bihar Co-operative Motor Vehicles Insurance Society Ltd. v. Rameshwar Raur. : AIR1970Pat172 , the Claims Tribunal has been held to be competent to give permission for amendment of the pleadings, when such amendment does not prejudice any accrued right of any party. The fact that the Tribunal is invested with the power to adopt summary procedure for a speedy disposal of the claim petition does not mean that it can ignore a salutary rule of law, which ensures that the parties can adduce evidence only with reference to their own pleadings. The said position does not differ whether the Claims Tribunal is considered to be a court or persona designata. Though the Claims Tribunal is invested with the status different from a civil court, it undoubtedly possesses all the attributes of the court and for all intents and purposes it is a civil court. It has been so held in Shardaben v, M. I. Pandya, : AIR1971Guj151 The Claims Tribunal like other courts of law must not ignore the rule that every document must be proved before it is relied upon vide Smt. Amarjit Kaur v. Vanguard Insurance Co. Ltd, 1969 Acc CJ 286 . S. 110-C says that the summary procedure to be followed by the Claims Tribunal shall subject to any rules that may be made in that behalf, In view of what has been stated above, the Tribunal in this case should not have allowed the claimants to go behind their pleading and to contend that the deceased was a gratuitous passenger without amending their pleadings. If such a thing were permitted it will lead to an anomalous situation where the claimants' case as per the pleadings will be different from the case as presented at the enquiry, and the opposite party will be at a disadvantageous position, for he will have to meet two cases. This will be obviated if the Tribunal has permitted the claimants to amend their pleadings and to adduce oral evidence in pursuance of the amended pleadings, The Tribunal has held that the deceased was carried as a gratuitous passenger ignoring the pleadings in the claim petition as well as in the reply statement filed by them. If the deceased was carried for hire that will be a purpose not authorised by the terms of the Insurance policy Ex. R. 1. The policy contains the following clause under the head of limitation as to use-

'The policy dues not cover use for hire or reward Use only for special domestic and pleasure purposes and for the insured's business.'

If the deceased was carried in the car for hire then there has been a use of the car for an unauthorised purpose. In view of the above terms contained in the policy, the Insurance Company cannot be held liable. We are not on the question now whether the driver of the car was authorised by the owner to take passengers for hire or reward. As already pointed out, the award had been passed in this case both against the driver as well as the owner of the car and that portion of the award has be come final. Therefore, it is necessary in this appeal to go into the question as to whether the owner of the car is vicariously liable or not. We are only concerned with the case whether the car has been put to an unauthorised use so as to enable the insurer to disclaim the liability to indemnify the owner of the car under the terms of the insurance policy. In view of our finding that the deceased was not a gratuitous passenger it is unnecessary to go into the question as to whether the insurer will be liable for the death of the deceased who was carried in the car as a gratuitous passenger.

13. The learned counsel for the claimants would contend that the policy in this case is a comprehensive one and therefore the policy should be taken to cover the death of or bodily injury to a passenger travelling in the car for hire or reward. The learned counsel refers to a decision in Bright v. Ashfold, (1932) 2 KB 153. In that case, a policy has been taken containing a clause that the Insurance company shall not be liable for any accident, loss or damage caused or sustained, while any motor cycle in respect of which indemnity is granted under this policy, is carrying a passenger unless a side car is attached. The insured drove the motorcycle on a road with another person sitting* behind him as a passenger on the pillion without a sidecar being attached to the motorcycle. He was charged with the offence of using a motor vehicle on a road without there being in force in relation to the user of the vehicle such a policy of insurance in respect of third party risks as required by part Il of the Road Traffic Act, 1930. While construing S, 38 of the Road Traffic Act, 1930 the court held that even if a passenger in a motor vehicle was treated as a third party his risk should also be covered by a policy required to be taken under the Road Traffic Act 1930 However, the view taken in this case has not been accepted as correct in later decisions. In Motor Insurers Bureau v Connell, 1970 Acc CJ 144, the court of appeal while construing S. 203 of the Road Traffic Act 1960 which corresponds to S. 95 of the Motor Vehicles Act held that the owner of a private car is not bound to insure passengers even if he occasionally gives lift upon payment. In that case, the owner of a private car gave lift to another, who offered him to pay for it. The car met with an accident and the person sustained injuries. On his filing an action for compensation, a question arose whether, in the circumstances, the car could be said to be a vehicle in which passengers are carried for hire or reward with in the meaning of the clause as used in S. 203 so as to make it compulsory for the owner to insure such a passenger. The Court held that a private owner of a car was not bound to insure passengers even if he gave a man lift for hire or reward and that the insurance was compulsory only if a vehicle was as a practice or habitually used for carrying or reward such as motor coaches, private hire cars and the like. Unless there was a habitual carrying of passengers for hire or reward, there was no statutory necessity to obtain a policy covering risks to passengers.

14. Lord Denning M.R. speaking for the Bench held that as the car, in which the deceased traveled agreeing to pay some amount as reward, was not a vehicle in which passengers were carried for hire a private vehicle and lift was given to a passenger on two or three occasions and that there lore the owner of the car is not bound to insure against injury to the passenger. Lord denning wound up his Judgment with the following observations normally or habitually or reward, that it was 'I would only add this: many people think the Act should be altered so as to provide compulsory insurance for passengers. I think so too. It is very hard on a passenger that he should be injured by the negligence of the driver and has no recourse for damages, I hope the Parliament will soon remedy the position. Meanwhile, I would suggest that anyone who asks for or accepts a lift should ask the driver 'Are you insured for passengers or not? For if he is not, and there is an accident, he may be unable to get any compensation'.

15. The above observations have been taken note of by the Parliament and the Motor Vehicles (Passenger Insurance) Act 1971 has been enacted to make insurance cover for passenger liability compulsory by repealing Paragraph (a) and the proviso to S. 203 (4) which came into force on lst Dec. 1972.

16. The Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Gimang and Pressing Co, : [1977]3SCR372 while dealing with the scope of S. 95 of the Motor Vehicle Act. 1939, as amended by Act 56 of 1969 had pointed out that neither the. Road Traffic Act 1960 or the earlier 1930 Act required users of Motor vehicles to be insured in respect of liability for death or bodily injury to passengers in the vehicle except in the case of a vehicle in which passengers were carried for hire or reward or by reason of or in pursuance of a contract of employment, that Sec. 203 (4) of the 1960 Act provided that the policy shall not be required to cover liability in respect of death of or bodily injury to persons being carried in or upon, or entering or getting on to or alighting from, the vehicle at time of occurrence of the event out of which the claims arise. The Supreme Court also referred to the law as regards general exclusion of passengers as stated in Halsbury's, Laws of England, 3rd Edn, Vol. 22 at page 368 para 765 which is as follows-

'Subject to certain exceptions a policy is not required to cover liability in respect of the death of or bodily injury to a person being carried in or upon or entering or getting into or alighting them the vehicle at the time of the occurrence of the event out of which the claim arises.'

Dealing with the plea that the words 'third party' are wide enough to cover all persons except the person and the insurer, the Supreme Court held that the insurance cover is not available to the passengers is made clear by the proviso to sub-section, which provides that a policy shall not be required-

'Except where the vehicle is a vehicle in which passengers are carried for hire or reward or by a reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which the claim arises.'

17. The Supreme Court held that 'it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under S. 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured. According to the learned counsel for the respondent, though it is not compulsory for the owner of a car to insure against the passengers either carried for hire or reward or gratuitously, still he ran take a comprehensive policy to cover such risks, which are required to be covered under S, 95 of the Act and that in this case a comprehensive Policy having been issued it should be taken to cover the risk of passengers as well. But as already pointed out, the policy on the face of it says that it will not cover the use of the vehicle for hire or reward, We have already found that this case the deceased was carried in the vehicle for hire or reward and such use is clearly prohibited by the terms of the policy. Sec. II Liability to third parties - of Insurance Policy (Ex. R. 1) is limited in respect of the liability of the insurer in relation to death of or bodily injury to any person to the extent necessary to meet the equirements of S. 95 of the Motor Vehicles Act 1939. Construing the identical clause, the Supreme Court held in Pushpabai Purshottarn Udeshi v. Ranjit Ginning and Pressing Co., : [1977]3SCR372 that the words except so far as is necessary to meet the requirements of S. 95 of the Motor Vehicles Act 1939 would indicate that the liability is restricted to the liability arising out of the statutory requirements under S. 95 and the second part of clause 1 (a) refers to the non-liability for injuries arising in the course of employment of such persons. In view of the above pronouncement of the Supreme Court. it is not open to the claimants in this case to contend that the policy Ex. R. 1 issued in this case which is said to be comprehensive, cannot be said to cover the risk in respect of passengers carried in a vehicle for hire or reward, in respect of whom there is a prohibition under this policy.

18. In this view of the matter, we have to set aside the award passed by the Tribunal so far as the appellant is concerned. The award of the Tribunal as against respondents 1, and 3 therein will stand. The civil miscellaneous appeal is therefore allowed. There will be no order as to costs.

19. The learned counsel for the respondents seeks leave to appeal to the Supreme Court, but in the circumstances we do not think that this is a fit and proper case for the grant of leave. Hence leave sought for is refused.

20. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //