Allahabad High Court
Markandey Singh S/O Late Shri Harakh ... vs Smt. Chanmuni Devi W/O Late Shri Dhanraj ... on 10 August, 2007
Author: Amitava Lala
Bench: Amitava Lala, V.C. Misra
JUDGMENT Amitava Lala, J.
1. Both the aforesaid appeals are arising out of the judgement and award passed in the claim petitions in connection with the selfsame accident, in which one has died and another injured. Both the owner and the driver of the vehicle in question have been fastened with the liability of payment of awarded amount of compensation jointly or severally for a sum of Rs. 1,22,000/- along with interest in case of death and a sum of Rs. 80,000/-along with interest in case of injury.
2. By preferring both the appeals the owner, appellant herein, contended that the finding of the Motor Accidents Claims Tribunal is perverse in nature. In support of his contention, he has stated that due to such accident two persons died and one became injured. Three claim petitions were filed in the Court below and were placed before Mr. S.K. Pandey, IV Additional Motor Accidents Claims Tribunal, Gorakhpur. Evidences were taken before him. Out of three claim petitions, two claim petitions were taken up by Sri R.S. Tripathi, the then District Judge, who was also the Judge of the Motor Accidents Claims Tribunal. No credence was given on the identical evidence led before the other Tribunal, wherein one of the claim petition was heard and all three i.e. the owner, the insurance company and the driver were fastened with the liability jointly or severally.
3. Two questions are involved herein. Firstly, whether the driver was holding the valid driving licence and running the vehicle rashly and negligently; and secondly, whether the vehicle was not used as private car but as taxi without such insurance coverage? In the two claim petitions only the owner and the driver were held responsible leaving aside the insurance company in total contravention with the judgement and award passed by a different parallel tribunal on 07th February, 2000 in Motor Accident Claim Petition No. 541 of 1996 (Smt. Kasturba Ojha and Ors. v. Markandey Singh and Ors.)
4. So far as the question of driving licence is concerned, the learned Judge has relied upon the evidence adduced by the parties before another Court, which disposed of the M.A.C.P. No. 541 of 1996 on 07th February, 2000. The tribunal held as under:
We find that driving licence was filed in that case and admittedly when accident of this case and the accident of above M.A.C.T. Case No. 541/96 is the same and court had given its finding for valid licence in favour of driver Ram Kripal Singh, I find no reason as to why this finding should not be honoured and taken to be binding upon present opposite parties. Also despite above details of the Licence Insurance Company has not dared to controvert the same although O.P. No. 1 owner has stated before this tribunal that driver had valid licence. In view of this discussion Issue No. 3 is decided against O.P. Insurance Company.
5. Therefore, this issue has been finalized in favour of the appellant. So far as the other question, as aforesaid, whether the private vehicle was converted to taxi or not, that has been discussed under Issue No. 4 on the basis of the statement of the injured person that talk for fare for travelling in the van in question was taken place in between the deceased and the driver. No other evidence is available as to whether the vehicle was used as taxi or not. A witness on the part of the insurance company deposed that as per the terms and conditions of the insurance policy the vehicle can be used for social, domestic and pleasure purposes and insured's own business. In the deposition the owner said that he never instructed the driver to take any passenger. But the tribunal only on the basis of such stray statement on the part of the injured came to a conclusion that the vehicle was not used for private purpose but as a taxi. However, the tribunal ultimately held that owner and driver both are jointly and severally liable to pay the compensation applying the test of vicarious liability. As per P. Ramanatha Aiyar's The Law Lexicon, 2nd Edition, 1997 meaning of vicarious liability is as follows:
Vicariouis liability. Where the driver of a motor omnibus employed by the owner thereof to ply the same for hire by carrying passengers, allows an unlicensed and unskillful person to drive it, when there are passengers in it, the driver, i.e., the servant carries out the duty for which he is employed negligently; and if such negligence results in an accident causing injury to a passenger, the owner, i.e. the master is liable in damages to the injured passenger. It is no valid defence to a suit for damanges for the owner to say that the servant (driver) acted against the master's (owner's) express directions, (1936 A.MLJ 100) As per Black's Law Dictionary, Sixth Edition, meaning of vicarious liability is as follows:
Vicarious liability. The imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. Indirect or imputed legal responsibility for acts of another.
6. From the ratio of three Judges' Bench judgement of the Supreme Court (National Insurance Co. Ltd. v. Swaran Singh and Ors.) we find that the insurance company can be absolved from the liability only when it has been proved by it that its case is squarely hit by the provisions of Section 149 (2) of the Motor Vehicles Act, 1988 (hereinafter called as the 'Act'). It is imperative upon the insurer to prove the breach of contract under Section 149(2) of the Act. The courts also readily apply the doctrine of waiver in favour of the insured and against the insurer. Whether a change of risk was so great as to avoid an insurance must always be a question of degree and a question of the opinion of the Court in the circumstances of the case. In the instant case the tribunal accepted the position on the basis of the evidence that the driver had a valid licence. However, the insurance company contended that the terms of the insurance provided that use of the vehicle will be made only for social, domestic and pleasure purposes and insured's own business but not for any other purpose. There is a clear violation of the terms on the part of the driver i.e. a representative of the owner to run the vehicle as taxi but not as a motor car as per the terms and conditions of the insurance. "Talk for fare" may not be a cast-iron case of acceptance of the fare for carrying passenger in violation of terms and conditions of the insurance but using of the vehicle as taxi not as a private car can not be an ignorable offence.
7. Section 2 (35) of the Act defines public service vehicle, as follows:
(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage.
8. Therefore, a motor car used or adapted to be used as taxi can be termed to be an offence provided it violates the law. In absence of the driver, from the testimony of various persons including the injured person it is categorical that the driver has adapted to use the vehicle as public vehicle. Categorical evidence of the injured person is that various persons were either sitting in the vehicle or taken in the vehicle. There is no specific averment anywhere that the persons, who were going by the vehicle in question, are relatives of owner of the vehicle, for which the driver was allegedly directed by the owner. There is no specific proof on the part of owner to establish that the persons, who were going by the vehicle, are members of his family, friends, etc. who may not be called as gratuitous passengers.
9. Therefore, in such circumstances, it can be safely construed that even if the payment of any fare had not taken place, the passengers can be called as gratuitous passengers but not relatives, family members, friends, who may be called as gratuitous passengers or passengers are covered by the wide clause of agreement for insurance i.e. the vehicle can be used for social, domestic and pleasure purpose and insured's own business. Against this background, we have taken into account the relevant portion of the recent judgement of the Supreme Court (United India Insurance Co. Ltd., Shimla v. Tilak Singh and Ors.), which is as follows:
19. The argument that the risk pertaining to a third party would extend to a person other than the parties to the insurance contract was raised in New India Assurance Co. v. Satpal Singh where after contrasting the language of Section 95 (1) of the 1939 Act with the provisions of Section 147 (1) of the 1988 Act this Court held : (SCC p. 241, para 11)
11. The result is that under the new Act an insurance policy covering third-party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-avis gratuitous passengers are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force.
20. The view expressed in Satpal Singh case however, has been specifically overruled in the subsequent judgment of a Bench of three Judges in New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223 : 2003 SCC (Cri) 493. In that case the discussion arose in connection with carrying passengers in a goods vehicle. This Court after referring to the terms of Section 147 of the 1988 Act, as contrasted with Section 95 of the 1939 Act, held that the judgment in Satpal Singh case had been incorrectly decided and that the insurer will not be liable to pay compensation. In the concurring judgment of Sinha, J. after contrasting the language used in the 1939 Act with that of the 1988 Act, it has been observed (vide SCC p. 235, paras 25 and 27):
25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage'.
27. Furthermore, Sub-clause (i) of Clause (b) of Sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas Sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
21. In our view, although the observation made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.
10. Therefore, under no stretch of imagination the insurance company can be fastened with the liability. There is no difference of opinion between two courts/tribunals since in the earlier case the insurance company was made liable jointly or severally but not exclusively. Hence, we are of the view that the appeals can not be sustained and are dismissed. If the entire sum has not been deposited by the owner of the vehicle, the same will be deposited in the tribunal for the disbursement of the same to the claimant/s as per the awards of the tribunal within two weeks from the date of communication of this order.
11. However, no order is passed as to costs. Incidentally, prayer of the appellant-owner for remittance of the statutory deposit of Rs. 25,000/- to the concerned tribunal to adjust with the amount of compensation to be paid to the claimant/s, stands allowed.