Madhya Pradesh High Court
Oriental Fire And Genl. Ins. Co. Ltd. vs Kamala Bai And Anr. on 27 November, 1989
Equivalent citations: II(1990)ACC77, 1991ACJ533
JUDGMENT K.L. Shrivastava, J.
1. This order shall also govern the disposal of Misc. Appeal No. 174 of 1987 (Oriental Fire & General Ins. Co. Ltd., Indore v. Suganbai) which arises out of the same motor accident which has given rise to Misc. Appeal No. 173 of 1987.
2. Circumstances giving rise to the appeals are these. The truck bearing registration No. MPU 6239 belonging to the M.P. Electricity Board (respondent No. 5 in MA No. 173 of 1987 and respondent No. 3 in MA No. 174 of 1987) and driven by its driver Devi Singh was on 4.5.1981 involved in an accident while on road between Gandharvepuri to Dewas.
3. The accident truck was insured with the appellant company against third party risks.
4. The aforesaid accident resulted in the death of two persons, Shaligram and Madangiri.
5. The legal representatives of Shaligram (respondent Nos. 1 and 2 in M.A. No. 174 of 1987) filed an application under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the Act') before the Motor Accidents Claims Tribunal, Dewas (for short 'the Tribunal') claiming a sum of Rs. 69,000/- as compensation (vide Claim Case No. 42 of 1981). The legal representatives of Madangiri filed a separate application under Section 110-A of the Act before the Tribunal claiming compensation in the sum of Rs. 72,600/- (vide Claim Case No. 41 of 1981).
6. After inquiry the learned Tribunal, in Claim Case No. 41 of 1981, awarded Rs. 26,000/-and in Claim Case No. 42 of 1981 Rs. 30,000/-with interest at the rate of 6 per cent per annum from the date of the application till realisation against the owner of the truck and its insurer, the appellant.
7. The contention of the learned counsel for the appellant is that the deceased were gratuitous passengers and as the insurance policy relating to the vehicle is merely an Act policy, not covering the risk of such passengers, no liability for compensation could be fastened on the insurer. In support of this submission reliance was placed on the Full Bench decision in Kallu Maharaj v. Meenabai 1989 ACJ 770 (MP).
8. The point for consideration is whether the appeals deserve to be allowed.
10. Chapter VIII of the Act (sections 93 to 111-A) deals with insurance of motor vehicles against third party risks. Section 95 of the Act deals with requirements of policies and limits of liability. Sub-section 1 (b) lays down that in order to comply with the requirements of the said Chapter, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against liabilities therein mentioned. Then there is proviso (i) to it which points out that the policy shall not be required to cover certain liabilities. Proviso (ii) is in these terms:
except where the vehicle is a vehicle in which passengers are carried for hire or reward or by 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 a claim arises, or
10. The Full Bench decision in Harishankar Tiwari v. Jagru 1987 ACJ 1 (MP), relates to the aforesaid proviso to Section 95 (1) (b). The head-note of the decision may usefully be reproduced. It reads thus:
Motor Vehicles Act, 1939, Section 95 (1) (b) proviso (ii)-Motor insurance-Goods vehicle-Passenger risk-Passenger carried for hire or reward-Owner of the goods loaded some bags of grain in a truck for carrying to market and he himself travelled with the goods-Truck turned turtle on the way to the market and he died-Truck driver found negligent in causing the accident by the Tribunal but the insurer of the truck held not liable as the deceased was not travelling in pursuance of any contract of employment-In another case a caretaker on behalf of the owner of the buffaloes was travelling along with the buffaloes in a truck and the truck over-turned and the caretaker died due to the negligence of the truck driver-Caretaker was receiving remuneration for the job- Whether the owner/agent of the goods accompanying the goods and travelling in the goods vehicle which met with an accident would be deemed to be a passenger who was being carried for hire or reward-Held: yes; and the insurance company liable to cover the risk of a hirer/agent or his employee travelling with the goods.
The hirer while paying hire charges for carrying the goods in the vehicle and while he or his employee is required to travel with the goods for its safety in the vehicle, it will be deemed that the hirer was carried in the vehicle for reward while his employee was carried in the vehicle in pursuance of his employment. So the hirer and his employee both have to be covered under the insurance policy and the insurer is bound to pay the compensation for death or bodily injuries while the vehicle met with an accident.
11. In the Full Bench decision in Kallu Maharaj's case 1989 ACJ 770 (MP), with reference to Section 95 (1) of the Act and Rule 111 of the M.P. Motor Vehicles Rules, 1974, it has been observed as under:
The vehicle referred to in the clause 'a vehicle in which passengers are carried for hire or reward' occurring in Section 95 (1) of the Motor Vehicles Act necessarily means that vehicle which can be lawfully used for carrying passengers for hire or reward. Rule 111 of the M.P. Motor Vehicles Rules, 1974, lays down that no person shall be carried in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle or the owner or the hirer and except in accordance with that rule. It is thus clear that a truck cannot be lawfully used for carrying a person who has not hired the truck but travels with a view to fetch his goods from some other place. Such a person cannot be held to be travelling for hire or reward. Such a person would be deemed to be a gratuitous traveller and in these circumstances, the insurer, in the absence of any term to the contrary in the insurance policy, would not be liable for the tortious act of the owner as this would not be the requirement of the insurance policy as laid down by Section 95 (1) of the Act. Therefore, persons travelling in a truck, not presently loaded with their goods but for the purpose of fetching their goods from another place, would be gratuitous travellers and would not be deemed to be travelling for hire or reward within the meaning of Section 95 (1) of the Motor Vehicles Act, 1939.
12. In the Division Bench decision in Shivlal v. Rukmabai 1987 ACJ 341 (MP), this court has held that the Act does not require coverage of the risk of a gratuitous passenger in a tractor and in the absence of any term in the policy covering the risk of such a passenger no liability in respect of him can be fastened on the insurer.
13. It is no doubt true that in the Full Bench decision in Narayanlal v. Rukhmanibai 1979 ACJ 261 (MP), it has been held that the act of a servant employed to drive a vehicle in giving lift to a person in disregard to Rule 105 framed under the Act providing that no person should be carried in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle or any prohibition while driving the vehicle in execution of the owner's business is an act for which the owner is vicariously liable but it does not follow that because the owner is liable, the liability is automatically extended to the insurer as well. The liability of the insurer has to be determined with reference to the provisions of the Act and the terms of the insurance policy.
14. As a result of the foregoing discussion I have no hesitation in holding that the learned Tribunal erred in holding that the insurer too was liable to pay compensation along with the owner of the accident vehicle.
15. This brings us to the prayer of the claimants for enhancement of the rate of interest awarded by the learned Tribunal.
16. On a careful consideration I am of the view that the prayer aforesaid cannot be allowed. Order 41, Rule 22 (1) of the Civil Procedure Code, 1908 (for short 'the Code') provides that any respondent though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of an appeal. The explanation below the provision is to the effect that a respondent aggrieved by a finding of the court may, under this rule, file cross-objection in respect of the decree so far as it is based on a finding by which he is aggrieved. The decision in Santosh's case 1985 MPWN 145, makes an illuminating reading on the aforesaid provision in Order 41, Rule 22 of the Code.
17. In the instant case the claimants have not filed any cross-objection and the prayer cannot be allowed with recourse to the principles of Order 41, Rule 33 of the Code. As to the scope of the said provision it has been observed thus in para 17 of the Division Bench decision in Sumanbai v. State of Madhya Pradesh 1982 ACJ 513 (MP):
A reading of Order 41, Rule 33 clearly goes to show that the rule has been made to provide for certain contingency where it may become necessary to pass a decree although a party may not have preferred an appeal but it does not provide that where a decree has become final against the defendant and the defendant has not challenged that decree by way of appeal or cross-objection still it can be set aside because one of the parties has preferred the appeal where the question of the decree against the other defendant is not at all raised.
The decision in Rukmani Devi v. Basantilal 1984 ACJ 548 (MP), is also apposite.
18. In the ultimate analysis the appeals succeed and are allowed. The impugned award so far as it holds the appellant liable to pay compensation to the claimants is set aside. The award shall stand accordingly modified. In the circumstances of the case the parties are directed to bear their own costs of these appeals as incurred.