Rajasthan High Court - Jaipur
Raj Kumar vs Kanhaiya Lal And Ors. on 3 March, 1992
Equivalent citations: 1993ACJ395
JUDGMENT Mohini Kapoor, J.
1. The appellant owns a factory of cement pipes in Vishva-karma Industrial Area, Jaipur. His father, respondent No. 2, Narain Das Mehta, was the owner of a Fiat car No. RSG 561 and on 11th August, 1979, at about 6.00 p.m. Kanhaiya Lal, respondent No. 1, driver of this car, came to the factory of the appellant and on finding that Narain Das was not there backed the car and while doing so, he hit the iron angles and channels with the result that several cement pipes kept there got smashed and were broken into pieces. The damage was estimated to be around Rs. 70,000/-. A criminal case was also launched against Kanhaiya Lal in which he admitted the guilt and he was fined Rs. 500/-. The appellant preferred a claim of Rs. 70,000/- before the Motor Accidents Claims Tribunal, Jaipur and in this case, the learned Judge of the Tribunal held that the accident did not occur at a public place and as such it was not covered by the terms and conditions of the insurance policy and no compensation could be paid to the appellant. Against this judgment dated 27th December, 1985, the present appeal has been preferred.
2. The learned Counsel for the appellant has contended that damage to the property is more or less an admitted position and PW 7, Keshvanand, an authorised valuer, has been examined to prove the same and the only question which remains is whether the insurance company would be liable for an accident which occurred in the private premises of a factory. The learned Counsel for the respondent insurance company has raised a plea that even if it is held to be proved that the insurance company is liable on account of the accident then the liability is limited up to Rs. 2,000/- in view of Section 95(2)(d) of the Motor Vehicles Act, 1939, as it stood on the date of the accident and the liability cannot be more than Rs. 2,000/-.
3. The learned Counsel for the appellant has referred to Section 95 of the Act which provides that the policy of insurance must be a policy which covers risk against liability which may be incurred by the insurance company in respect of the 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 and in the explanation it has been clarified that the accident would be deemed to have been caused by use of a vehicle in a public place notwithstanding that the person or property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. According to the learned Counsel for the appellant, the vehicle was being used in a public place when it met with the accident and caused damage to the property. Even otherwise it is contended that everyone had access to the factory premises for purposes of doing any work and as the place v/as open to public this would also be known as public place for purposes of Section 95 of the Act. In United India Insurance Co. Ltd. v. Roop Kanwar 1991 ACJ 74 (Rajasthan), the accident had occurred in a garage owned by an individual for purposes of carrying on repairs and referring to the definition of a public place in Section 2(24) of the Act, it was held that all places where the members of public have an access for whatsoever reasons, whether as of right or controlled in any manner whatsoever, would be covered by the definition of 'public place'. Narsingh v. Balkishan 1988 ACJ 288 (MP), is a case where the accident occurred in the compound of a printing press and this was owned by an individual but public had access to it as there was office of the Text Book Corporation and public could not be denied access to it. In these circumstances, it was held that it was a public place and that in order to be a public place it is not necessary that it should be a public property. Another Rajasthan case is Rashida v. Baldev Singh, S.B. Civil Misc. Appeal No. 8 of 1985; decided on May 2, 1988. The accident in the case had occurred in the compound of a factory known as Jaipur Metals. The insurance company was held liable for paying compensation on account of rash and negligent driving of the driver.
4. The learned Counsel for the respondent has placed reliance on Chairman, Neyveli Lignite Corporation v. Nayathan 1989 ACJ 95 (Madras). In this case, the insurance company was not held liable for the rash and negligent driving by the owner of a van in a mines area. This area was a prohibited area and public had no access to it. Being a prohibited area in which the public did not have a right to access it was held that it could not be "a public place so as to make the insurance company liable. In Nagarathinam v. Murugesan 1991 ACJ 673 (Madras), the accident occurred at a petrol bunk. Even though the public had access to this place for purposes of purchasing petrol, diesel etc. but it was held that the right of entry exercised by them was for a specific purpose and could not be equated to a right of access for the public at large. The insurance company was not held liable. In Oriental Fire & General Insurance Co. Ltd. v. Rabari Gandu Punja 1982 ACJ 202 (Gujarat), it was held that the insurance company was not liable when the accident took place inside the compound of the factory, to which the public did not have a right to access. A truck while being taken in reverse had run over a labourer and it was held to be an accident not in a public place. Similarly in Life Insurance Corporation of India v. Karthyani 1975 ACJ 226 (Orissa), the Orissa High Court did not accept that the premises of Hindustan Steel Factory was a public place so as to make the insurance company liable.
5. I have considered the contentions raised on behalf of both the sides and looked into the decisions cited above. There is no doubt that the Madras High Court and Gujarat High Court have taken a view different from the view of this Court but in the present case it has come in evidence that several persons were present there for purposes of business and that those who had any work could enter the premises. It cannot be a public place in the sense of property owned by public or the premises in the use of everyone but this was not a place which could be said to be a prohibited area or a place where admission was restricted by permission. People come and go there for purposes of work just as in a workshop for repairs. The meaning of a public place has to be appreciated in connection with the liability which could be fastened on the insurance company on account of an accident and not a public place synonymous with road or park and it may also be said that under explanation to Section 95 of the Act, the liability of the insurance company cannot be avoided even if the person who died or got injuries or the property which was damaged was not in a public place. In the present case, the property was in the factory premises but the driver of the vehicle while reversing the vehicle caused damage to the property and it could be said that he did so while reversing the vehicle from the public road into a factory and caused the damage. In my view, this is a case where the damage to the property has been caused by use of a vehicle in a public place and the insurance company is liable for the damages.
6. The next question which arises is whether the liability in respect of the damage to the property of a third party can be said to be limited to Rs. 2,000/- in view of Section 95(2)(d) of the Act.
7. No doubt this clause places limit on the liability of the insurance company but then the insurance company is free to enter into a contract. The insurance company cannot enter into a contract for paying compensation less than this amount, it can certainly enter into a contract to undertake higher liability. The insurance policy has been produced and this shows that the limit of the amount of company's liability under Section II-1(ii) in respect of any claim or series of claims arising out of the policy shall be unlimited. Sub-section (ii) relates to the damage to property other than property belonging to the insured or in the custody or control of the insured. In the present case, no doubt that the owner of the car is the father of the appellant whose property has been damaged but there is nothing to show that the property belonged to the father of the appellant. The contract being for unlimited liability on account of damage to property of a third party, the insurance company is liable for whole of the loss which is resulted to the appellant.
8. AW 7 has assessed the value of the cement pipes which had been damaged at Rs. 67,375/-. He has assessed the salvage value at Rs. 1,000/- to Rs. 1,500/-. In view of this it would be appropriate to assess the loss at Rs. 66,000/- and the insurance company is liable for this amount.
9. In the result, the appeal is allowed. An award for Rs. 66,000/- is passed in favour of the appellant and against all the respondents. The respondent No. 3 is allowed three months' time to make the payment failing which the amount shall be paid with interest at the rate of 12 per cent per annum from the date of the claim petition.