Rajasthan High Court - Jaipur
National Insurance Co. Ltd. vs Abdul Majid And Ors. on 17 December, 1993
Equivalent citations: II(1994)ACC195, 1995ACJ619
JUDGMENT Milap Chandra Jain, J.
1. These appeals have been filed against the common judgment of the learned Judge, Motor Accidents Claims Tribunal, Doongarpur, dated 26.8.1985 by which he has awarded compensation to the claimants-respondents as follows:
----------------------------------------------------------------------------------
S. M.A.C.T. Appeal Name of deceased/ Amount of No. Case No. No. injured compensation
----------------------------------------------------------------------------------
(1) 62 of 1982 76 of 1986 Mohanlal (injured) Rs. 6,100/- (2) 63 of 1982 72 of 1986 Ramlal (deceased) Rs. 72,000/- (3) 64 of 1982 75 of 1986 Lilaram (injured) Rs. 5,000/- (4) 65 of 1982 74 of 1986 Gautamlal (injured) Rs. 7,200/-
----------------------------------------------------------------------------------
2. The facts of the cases giving rise to these appeals may be summarised thus. On 26.4.1982, Abdul Majid, respondent No. 1, was driving truck No. RSY 8849 from Vijaypur to Doongarpur. The truck was owned by Himmat Singh, respondent No. 2 and insured by the National Insurance Co. Ltd., appellant. In the way at Ratanpur, the driver Abdul Majid and Pradeep Kumar, opposite party No. 2, allowed several persons to sit and travel in it after obtaining fare from them at the rate of Rs. 41-per passenger. The truck was being driven rashly and negligently. As a result thereof, it toppled down near the village Tharia. Mohanlal, Ramlal, Lilaram and Gautamlal received injuries and Ramlal died as a result of his injuries. Separate claim petitions were filed by the said injured persons and the legal representatives of the deceased Ramlal. The owner Himmat Singh denied all the averments of the claim petitions and averred in his written statements that he had sold the said truck on 22.4.1981 to Gebilal, opposite party No. 3. In its written statements, the insurance company admitted that the accident had taken place with the truck and that it was insured with it in the name of the owner Himmat Singh. The insurance company has taken preliminary objections regarding misjoinder and non-joinder of the parties and travelling of several persons against the terms of the policy without insurance cover in its written statements. In the additional pleas, it has also been averred that the said truck was not being driven by a licensed driver under the control of the insured and it is not liable to pay any amount of compensation. The driver, Abdul Majid, Gebilal and his son Pradeep Kumar have filed joint written statements admitting that the said truck was purchased by Gebilal but it was not legally transferred in his name, it was insured with the insurance company, accident had taken place and at the time of the accident it was being driven by its driver, Abdul Majid. It has further been averred that the said injured persons entered into the truck taking advantage of the darkness and without permission of the driver.
3. Issues were separately framed in each case and order was passed for the consolidation of all the four cases and to record the evidence in the M.A.C.T. Case No. 62 of 1982. After recording the evidence of the parties and hearing them, the learned Tribunal granted compensation as said above.
4. It has been contended by the learned Counsel for the appellant that the learned Tribunal seriously erred in holding appellant liable to pay compensation, it did not consider that the driver Abdul Majid was not holding valid licence, the Offending truck No. RSY 8849 had been transferred by insured Himmat Singh prior to the accident, several persons were allowed to sit by him in the truck against the terms and conditions of the policy and the insurance company could at the most be liable to pay Rs. 5,000 in each case and not to the extent of Rs. 50.000/-.
5. There is no substance in any of these contentions. Clause (b) of Sub-section (2) of Section 96 of the Motor Vehicles Act, 1939, enumerated the conditions of policy whose breach exonerated the insurer from the payment of compensation. Its Sub-clause (ii) ran as under:
A condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification.
The relevant portion of the insurance policy, paper No. C-28/2-3, runs as under:
The company shall not be liable under this policy in respect of (iii) any accident, loss, damage and/or liability caused, sustained or incurred whilst the motor vehicle is being driven by any person other than a driver.
It is not provided in this condition that the driver should be duly licensed. Abdul Majid, NAW 4, has deposed that he was a driver and he was having a licence for driving light vehicles. He fulfilled the said condition specified in the insurance policy by being a driver. The insurance company could not escape liability on the ground that he was not holding licence for driving heavy vehicle as it is not so mentioned in the abovenoted condition of the policy.
6. The case of the claimants is that the driver allowed the deceased and injured persons to travel in his truck after taking Rs. 4/- as fare from each one of them. Issue No. 1 was framed on this point. The Tribunal has decided this issue in favour of the claimants. In view of the Full Bench decision given in Santra Bai v. Prahlad 1985 ACJ 762 (Rajasthan), the appellant insurance company is liable to pay compensation to the injured persons and the legal representatives of the deceased person.
7. It is not proved that the truck RSY 8849 was transferred by the insured Himmat Singh prior to the accident. Himmat Singh, NAW 1, has deposed that he entered into an agreement for the sale of his truck No. RSY 8849 with Gebilal Mehta for Rs. 49,501/-, agreement, Exh. A-l, was executed in between them and sale letter was issued to the purchaser Gebilal after he had paid the balance amount of Rs. 20,000/- to him. In the cross-examination he admitted that the sale letter was not issued on the day on which the agreement was executed, i.e., on 22.4.1981. Gebilal has not been examined. Agreement, Exh. A-l, clearly recites that Himmat Singh agreed to sell his truck No. RSY 8849 for Rs. 49,501/-, he obtained Rs. 29,501/- on the day on which this agreement was executed, balance of Rs. 20,000/- remained outstanding against the purchaser Gebilal and on payment of Rs. 20,000/- the transfer of the vehicle would be effected. There is nothing on the record to indicate as to when Rs. 20,000/- were paid by Gebilal to Himmat Singh and sale letter was issued. Admittedly, the insurance policy dated 19.12.1981, paper No. C-28/2-3, for the period from 20.10.1981 to 19.10.1982 was issued in the name of Himmat Singh. If the sale would have been completed before 19.12.1981, the insurance policy would not have been issued in favour of Himmat Singh. Accident took place on 26.4.1982 during the subsistence of the policy. As such the insurance company is liable to pay compensation.
8. The next question for consideration is about the extent of liability of the insurance company. Relevant portion of Section 95 (2) of the Motor Vehicles Act, 1939, as it stood on the date of the accident, i.e., 26.4.1982, ran as under:
(a) where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being earned in the vehicle;
(b) 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,-
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers,-
(1) a limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers;
(2) a limit of seventy-five thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers;
(3) a limit of one lakh rupees in all where more the vehicle is registered to carry than sixty passengers; and (4) subject to the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab, and five thousand rupees for each individual passenger in any other case;
(c) save as provided in Clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred;
(d) irrespective of the class of the vehicle, a limit of rupees two thousand in all in respect of damage to any property of a third party...
Clause (a) of Sub-section (2) speaks of goods vehicles only. Clause (b) is in respect of vehicles in which the passengers are carried. Clause (c) deals with other classes of vehicles. Clause (d), dealing with damage to property, starts with 'irrespective of the class of vehicle'. It includes all types of vehicles. It is thus clear that the insurance coverage is on the basis of the classification of the vehicles, namely, (1) goods vehicles, (2) vehicles in which passengers are carried and (3) vehicles other than the goods vehicles or passenger vehicles. This is also clear from the provisions of Section 94 of the Act and various definitions given in Section 2 of the Act, particularly of the 'goods vehicle' in Sub-section (8), 'public service vehicle' in Sub-section (25) and 'transport vehicle' in Sub-section (33) that the insurance coverage is on the basis of the classification of the motor vehicles at the time of its insurance and not on the basis of their use at the time of the accident. It is, therefore, difficult to hold that when the accident took place the offending truck was a vehicle meant for carrying passengers and was not a goods vehicle. I find support in this view from Jai Laxmi v. R.G. Insurance Company AIR 1971 Madras 132 and New India Assurance Co. Ltd. v. Kamlaben 1993 ACJ 673 (Gujarat), that the extent of liability of the appellant insurance company is as provided in Section 95 (2) (a) of the Act. In Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 501 (SC). Their Lordships have interpreted the words 'in one accident' appearing in Clause (a) of Sub-section (2) of Section 95 of the Act and held that if more than one person is injured in the course of the same transaction, each one has met with an accident and each is entitled to total compensation limited by the statute from the insurance company. Thus, the appellant insurance company is liable to pay compensation to the extent of Rs. 50.000/-in each case.
9. There is yet another aspect of the matter. The transferee Gebilal has not been impleaded as a party in the appeals despite the fact that he was impleaded as non-petitioner No. 3 in all the claim petitions. In his absence, the appellant cannot be exonerated from the liability to pay the compensation, otherwise it would greatly prejudice the claimants. Thus, there is no force in the appeals.
10. Accordingly, all the four appeals are dismissed with costs.