Himachal Pradesh High Court
National Insurance Co. Ltd. vs Sarup Devi And Ors. on 1 December, 2003
Equivalent citations: II(2004)ACC561, 2004ACJ961
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. Since all these appeals have arisen out of the same award which was passed by the learned Motor Accidents Claims Tribunal, Sirmour at Nahan, except F.A.O. Nos. 116 and 156 of 2002, as such these have been taken up together for hearing at the joint request of the learned counsel for the parties, who submitted that these be disposed of at the earliest keeping in view the interest of large number of claimants.
xxx xxx xxx Admitted facts in all these appeals are, that on the night intervening 7/8.8.2000 bus No. HP-1575 was being driven by late Om Singh alias Bablu, son of Rattan Singh. He was owner-cum-driver of this bus. It was carrying marriage party of Hardev Singh and was on its way from village Bhauri to Dingar Kinnar. At about 12 midnight, when it reached near village Khanagan, an attempt was made by the bus driver to overtake Maruti van No. HR-49-2628. This was carrying the bridegroom Hardev Singh.
It is also the case of the respondents-claimants that after hitting the Maruti van deceased driver Om Singh lost control of the bus. As a result of it, bus rolled down into the khud. This accident was the result of rash and negligent driving on the part of the deceased driver. Consequently, number of persons died at the spot and some received injuries. One of such persons was RW 7. I have made special mention of RW 7 because it is the case of appellant that on his statement under Section 154, Criminal Procedure Code, F.I.R. in question (Exh. P-1) was registered.
Vehicle being insured with the appellant insurance company is not disputed. In fact, defence of the appellant during the course of proceedings before the learned Tribunal below was, and even at the time of hearing of these appeals is, that against the authorised capacity of 40 passengers plus two (driver and conductor), 63 were being carried in the bus in question at the time of its accident. Therefore, this is a clear cut case of proved violation of the terms of contract of insurance Exh. R-7, as well as of route permit whereunder the bus was being plied Exh. R-3.
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2. Another fact that needs to be noted is that as many as 41 cases were filed before the Tribunal below, one was filed at Solan. Copy of the decision by the Tribunal at Solan is Exh. RX.
3. Mr. Ashwani Sharma, the learned counsel for appellant insurance company made the following submissions in support of these appeals:
(a) Conditions of the contract of insurance Exh. R-7 as well as route permit Exh. R-3, both have been violated by carrying 63 passengers against the authorised capacity of 40 plus two (driver and conductor), his client is not liable for payment of any compensation.
(b) Bus at the time of accident had a stage carriage permit. The place of accident where the bus met with accident was not covered by Exh. R-3. By referring to this document, Mr. Sharma submitted that the bus could be plied as a stage carriage on Solan-Mangarh route via Narag, as per time table. By referring to the place of accident as well as statement of PW 16 and certificate Exh. PW 16/A, produced by this witness, he submitted that the bus admittedly was being used as a contract carriage for carrying baraat (marriage party), from village Bhauri to Dingar Kinnar. As such his client is not liable for payment of any compensation.
4. With a view to support these submissions reliance was placed by him on Sections 2 (40), 66,72 (2) (xxi), 87 (1) (a) and (c) of the Motor Vehicles Act, 1988 and also on Rule 65 (2) of H.P. Motor Vehicles Rules, 1999. He also referred to the forms of stage carriage and contract carriage permits which were required to be there for plying the bus. In addition to these, Sections 147 and 149 (2) (a) (i) (c) of the Motor Vehicles Act, 1988 were also relied upon by Mr. Sharma. By referring to the provisions of Sections 95 and 96 of the Motor Vehicles Act, 1939, he submitted that looking to the change in language of both the Motor Vehicles Acts, i.e., of 1939 and 1988, the learned Tribunal below has fallen into grave error while passing the impugned award in these cases and prayed for allowing these appeals and exonerating the appellant of the liability fastened on it.
5. Two pleas in the alternative and without in any manner conceding the claims of the respondents-claimants were also urged by Mr. Ashwani Sharma. These are that if all his submissions urged earlier fail, then on the basis of New India Assurance Co. Ltd. v. Kamla, 2001 ACJ 843 (SC), any amount that is paid by his client in these cases be made recoverable by the appellant from the insured. The other plea was, that looking to the overloading in the bus at the time of accident which according to him, was carrying 63 passengers, the doctrine of proportionality may be invoked in these appeals and compensation be reduced by 1/3rd, holding the appellant liable to the extent of 2/3rd only in all these appeals.
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6. So far as plea of violation of route permit and policy of insurance urged on behalf of the appellant is concerned, relevant documents are Exhs. R-3, R-4 and R-7. Exh. R-3 is a photocopy of route permit. Its perusal shows that stage carriage permit was issued in favour of Om Singh Panwar of Narag on Solan-Mangarh route via Narag (as per time table). Exh. R-4 is the photocopy of the registration certificate. At its page 3, seating capacity of the bus including driver was 42+2 only,
7. So far Exh. R-7, photocopy of the policy of insurance is concerned, reference was made by Mr. Sharma to the premium charged in the 'Schedule of premium', as well as on the 'Limitation as to use'. By referring to the Schedule of premium it was submitted that it was for 40 passengers, i.e., Rs. 4,800. Besides this amount, to cover the risk of driver and cleaner premium was also charged. On the basis of premium charged, it was reiterated by Mr. Sharma that his client cannot be fixed with any liability beyond what was contracted for. Suffice it to say in this behalf that it has come in the statement of RW 10 Rakesh Kumar, Branch Manager, who had produced Exh. R-7 along with its conditions, that the policy brought by him does not contain the conditions of policy. He further stated that they did not keep the copy of conditions with the carbon copy of the policy as record in their office. IMTs admittedly formed part of the conditions of policy. And risk covered vide Exh. R-7 was subject to certain IMTs. There is no evidence that the conditions attached with Exh. R-7 were the same as those which formed part of its original. All exclusions were to be proved/established by the insurance company, if it wanted to succeed in its defence based on the conditions of policy. It is not the case of appellant that any attempt was made to summon the original policy of insurance from the successors of the owner during the proceedings, nor in these cases any attempt had been made to seek leave of the court for producing secondary evidence since original of Exh. R-7 was not coming forth. As such in my considered view conditions attached with Exh. R-7 referred to in the statement of RW 10 cannot be accepted to be an integral part and parcel of the policy Exh. R-7 for being read in evidence.
8. Once this conclusion is arrived at, IMT Nos. 12-18 subject to which premium was charged cannot be looked into for any purpose whatsoever. Another reason to take this view is that it is not the case of RW 10 that on the basis of the contemporaneous official record at its Parwanoo Branch that the conditions attached with the policy, Exh. R-7, are in fact the same as were attached with the policy of insurance issued to the deceased owner driver Om Singh. So far proof of all exclusions by appellant is concerned, this matter is no more res Integra in view of the decision of Supreme Court in the case of Narcinva v. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 (SC).
9. Now coming to the other plea of Mr. Ashwani Sharma, learned counsel for the appellant, that the number of passengers was 63 at the time of accident in the ill-fated bus, as against its authorised capacity of 42+2 as per Exh. R-3 the route permit and 40+2 as per Exh. R-7 the policy of insurance.
10. He laid emphasis on the statements of RW 5 Head Constable Kamal Dev, MHC Police Station, Pachhad, RW 6 S.I. Dilshad Mohammed, Police Line, Nahan, and of Gokal Chand, RW 7, who was one of the occupants of the bus in question and on whose statement, Exh. R-1 the F.I.R. was registered. Now, reference to the statements of these witnesses as also to F.I.R. Exh. R-1, route permit Exh. R-3 and again to the insurance policy Exh. R-7, will be made.
11. RW 5 Head Constable Kamal Dev had brought the original F.I.R. No. 16 of 2000, dated 8.3.2000 under Sections 279, 337 and 338, Indian Penal Code of Police Station, Pachhad. He has placed on record an attested copy of Exh. R-1. In cross-examination, he stated that this F.I.R. was recorded on the basis of ruqua, sent by S.I. Dilshad Mohammed from the spot.
12. Dilshad Mohammad has appeared as RW 6. And according to him on receiving information of the accident, he came to the spot and recorded the statement of Gokal Chand, RW 7, under Section 154 of Criminal Procedure Code. Then he sent ruqua to police station for registration of the F.I.R. He further stated that during the investigation he had found that 44 persons had died and 15 had received injuries in this accident. According to him, injured examined by the witness had informed him at the spot that all of them had been travelling in the bus in question. In addition to these, there were three more persons who sustained injuries in the accident but were discharged after first aid. RW 7 being one of the occupants as stated by him, (Gokal Chand). According to RW 6, bus driver in a precarious condition was sent to P.G.I., Chandigarh, but he died on the way. He had prepared site map and on its production, it was to be marked as Exh. R-2. But it is not there on the exhibit file. When cross-examined, RW 6 denied the suggestion that Gokal Chand had not told him in his statement under Section 154, Criminal Procedure Code that there were 63 passengers in the bus. He, however, admitted that the bus was carrying a baraat from village Sarol to Dingar Kinnar and was not picking passengers on the way.
13. When a reference is made to the statement of RW 7 Gokal Chand, he stated that he was one of the occupants of the bus involved in the accident on 7.3.2000. He sustained injuries on his person. He admitted to having made the statement under Section 154, Criminal Procedure Code at the spot to S.I. Dilshad Mohammad. But this PW was not confronted with his such statement or with contents of Exh. R-1, the F.I.R. No plausible reason could be given by Mr. Sharma for such vital omission. Particularly in view of the defence set up by appellant before the Tribunal below and also in this appeal. In cross-examination, he stated that he did not know the number of passengers in the bus, therefore, he did not tell S.I. in his statement that there were 63 passengers in it. In his further cross-examination, he stated that when the accident took place at night, there were 30-35 occupants in the bus. No doubt, RW 6 S.I. Dilshad Mohammad had stated that RW 7 had given the number of persons travelling in the bus to be 63. However, when the maker of the statement stepped in the witness-box, he has categorically stated not having given the number at 63. He also stated that he had not given number in his statement under Section 154 of Criminal Procedure Code at 63. Though in his further cross-examination he stated that there were 30-35 occupants in the bus. In my opinion it was incumbent on appellant to have confronted RW 7 with his statement under Section 154 of Criminal Procedure Code. As such there is no positive evidence on record produced by the appellant for holding that number of persons travelling at the time of accident was 63.
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14. For reasons to be recorded hereinafter, plea urged by learned counsel for the appellant that route permit and insurance policy were violated, therefore, his client is not liable, cannot be accepted. Firstly, there is no evidence with certainty and exactitude that 63 persons were travelling in the ill-fated bus at the time of accident particularly in the face of statement of RW 7. And on the basis of statement made by RW 7 in court, no benefit can be derived by the appellant out of F.I.R., Exh. R-1. There is no material brought on record not even from the criminal file, by the appellant though it had examined as many as 16 witnesses in this case including RW 6.
15. In addition to this I have no reason to disbelieve the statement of PW 32 that in addition to the passengers in the bus 5/6 persons were standing on the roadside, besides this witness. Two of whom died at the spot and others were roped towards the dhank in the accident. There is no rebuttal to this statement produced by respondents-claimants, though a suggestion is given to PW 32 that two persons who were stated to have died while standing at the spot, were in fact travelling in the bus. Such a suggestion was denied by him.
16. In Motor Owner's Insurance Co. Ltd. v. Jadavji Keshavji Modi, 1981 ACJ 507 (SC), while dealing with Section 95 (2) (a) of the Motor Vehicles Act of 1939, Supreme Court was interpreting the words 'any one accident. It was held that in the context of purpose of this Act, it signifies as many accidents as number of persons injured in an accident. While overruling the decision of Karnataka High Court, the Supreme Court held that the limit of compensation of Rs. 20,000 extends to each claimant. Though in language of Section 149 as well as Section 147 of the 1988 Act (supra), as compared to Sections 95 and 96 of 1939 Act, there is marked difference, still on the basis of the reasoning of this Supreme Court in case of each one of the claimants in all these appeals it is held to be a separate accident.
17. Another reason to take this view is that in all 41 claim petitions were filed at Nahan in District Sirmaur. Whereas one claim petition was filed at Solan. Thus, in all 42 petitions have been filed. Appellant with a view to establish that number of passengers travelling in the bus in question was 63, was also required to produce cogent, reliable and legally acceptable evidence as to who were the other persons. This is in the nature of exclusion to avoid liability, which it has miserably failed to prove on record. Rather this position is strengthened from the number of passengers given by RW 7 as well as of those standing at Khanangan as PW 32, who were roped in this accident. As also RW 7 having not been confronted with his statement recorded under Section 154, Criminal Procedure Code, the persistent harping on Exh. R-1, i.e., F.I.R. will be of no consequence, much less help to the appellant, to advance its case in these appeals.
18. So far plea of the appellant based on Exh. R-3 and Exh. R-7 is concerned, for the disposal of these appeals suffice it to say that firstly there is legally acceptable evidence of 30/35 persons travelling in the bus at the time of accident. Secondly, on the basis of the statement of RW 6, it cannot be said that number of persons travelling in the bus was 63 at the time of accident. Therefore, there is no question of violation of route permit, Exh. R-3. So far number of persons travelling is concerned, keeping in view the registration certificate, Exh. R-4, 42+2 persons were permitted to be carried. Admittedly, premium for 40 persons had been charged as is evident from Annexure R-7 and as was argued in these appeals.
19. Exh. RW-16/A was pressed into service by the appellant with a view to support its contention that the bus was plying as a contract carriage and not stage carriage for which purpose permit had been issued.
20. Question that needs to be seen is, whether the so-called violation, is of such a character that it will compel the court to reject the claim of the respondents? Answer would be No. Reference is being made in this behalf, to a decision of this court reported in Oriental Insurance Co. Ltd. v. Bishan Dass, 1988 ACJ 106 (HP).
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21. Supreme Court in the case of B. V. Nagaraju v. Oriental Insurance Co. Ltd., 1996 ACJ 1178 (SC), while considering the liability of insurance company for the alleged breach by carrying human beings in a goods' vehicle more than the number permitted, held that it was not so fundamental a breach so as to afford ground to the insurer to eschew liability altogether. In this case exclusion of terms of insurance policy were read down to serve main purpose of the policy.
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22. A learned single Judge of Punjab & Haryana High Court in Gurpal Singh v. Jagan Nath, 2000 ACJ 885 (P&H), while considering the fact that number of passengers in bus exceeded the permitted number of 52, thus, there was violation of the terms of policy, which exempted the insurance company. While considering the question whether the insurance company could be absolved of its liability merely because a few extra passengers boarded the bus, the answer was in the negative.
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23. On the other hand, Mr. Sharma placed reliance on a Division Bench judgment of Gujarat High Court in Oriental Insurance Co. Ltd. v. Rajiben, 2002 ACJ 404 (Gujarat). When a reference is made to this decision, there was a specific prohibition of use of vehicle for conveyance of passengers for hire or reward in the policy. In this case Matador was hired for purchasing and bringing one electric motor. When the hirer was returning along with electric motor in the Matador, it met with an accident and the hirer sustained fatal injuries. Contention of the insurance company, that in view of the conditions of permit, the owner of goods was permitted to travel in the vehicle. However, the permit was not placed on record, extracts of permit produced did not show that carriage of passenger was permitted. In these circumstances insurance company was held not liable. This judgment does not advance the case of the appellant in these appeals in any manner, and in fact is clearly distinguishable because of the circumstances those were peculiar to this case.
24. Taking into account the view that has been taken in this judgment regarding the number of passengers being there, i.e., 63, having not been accepted, submission based on the doctrine of proportionality and then to reduce the entire compensation by 1/3rd is also rejected.
25. Now coming to the plea of the appellant insurance company based on the provisions of the Motor Vehicles Act, 1988 and the Himachal Pradesh Motor Vehicles Rules, 1999. These questions will not arise for determination, because it has been held as a question of fact that there was no breach of any condition of policy and even if there was breach, still for the purpose of respondents, the appellant cannot be exonerated of its liability to satisfy the awards in all these cases.
26. So far the alternate plea urged by Mr. Ashwani Sharma to entitle his client to recover the amount from the parents of the deceased owner-cum-driver of the bus is concerned, this is permissible in law keeping in view the decision of the Apex Court in New India Assurance Co. Ltd, v. Kamla, 2001 ACJ 843 (SC). However, in this case it cannot be accepted, for the view that has been taken on the basis of the evidence as discussed hereinabove.
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27. Now taking up F.A.O. No. 156 of 2002, National Insurance Co. Ltd. v. Saroj Bala, as well as F.A.O. No. 116 of 2002, Rattan Singh v. Saroj Bala, I have heard the learned counsel for the parties in both these appeals also. These appeals have arisen from the award passed by M.A.C.T. (II), Solan. In view of what has been held in the preceding paras, award in both these appeals is modified by holding that the parents of the deceased in both the appeals shall not be held liable for the payment of awarded compensation to the insurance company and their appeal (F.A.O. No. 116 of 2002) deserves to be allowed. It is ordered accordingly. It is further held that it is the insurance company who is liable for payment of the awarded compensation and its appeal F.A.O. No. 156 of 2002 stands dismissed subject to this modification.
28. Mr. Thakur urged that his clients, i.e., parents of the deceased Om Singh driver-cum-owner of the bus, are not liable for payment of any amount either to the respondents-claimants or to the appellant as they did not incur any personal liability. He pointed out that in case they have inherited anything from the deceased, their liability is limited to that extent only and not beyond it. This is the correct legal position. However, it is a different matter that this question does not arise in these appeals in view of what has been held hereinabove in the preceding paras.
29. No other point is urged.
30. In view of the aforesaid discussion, as well as subject to corrections in F.A.O. Nos. 68 and 72 of 2003, as well as modification of apportionment in F.A.O. No. 17 of 2003, all these appeals except F.A.O. No. 116 of 2002 and F.A.O. No. 156 of 2002 being without any merit are dismissed with no order as to costs. So far F.A.O. No. 116 of 2002 and F.A.O. No. 156 of 2002 arising out of the award passed by M.A.C.T. (II), Solan are concerned, in both these two appeals award is modified by holding that parents of the deceased shall not be liable for the payment of awarded compensation to the insurance company. Their appeal is allowed and it is further held that it is the insurance company who will be liable for payment of the awarded amount. With this direction, appeal of the insurance company, i.e., F.A.O. No. 156 of 2002 is dismissed.
31. Interim orders passed in all these appeals shall stand vacated forthwith and all pending applications also stand disposed of, in view of the orders passed in the main matter.