Himachal Pradesh High Court
Krishni And Ors. vs Amar Nath And Ors. on 4 March, 1996
Equivalent citations: I(1997)ACC251
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. Brief facts giving rise to this appeal are that appellants filed a claim petition before the Motor Accidents Claims Tribunal, Shimla Division, Camp at Bilaspur, against the respondent No. 1, Amar Nath, owner, Parkash Chand, driver and New India Assurance Co. Ltd., insurer of tractor bearing registration No. 7141. Appellant No. 1 is the widow, appellant No. 2 is the minor daughter and appellant Nos. 3 and 4 are minor sons of late Inder Dev. During the course of proceedings pending before the Tribunal, parents of the deceased, namely, Himi and Sairu, were impleaded as proforma respondents and in the present appeal they are arrayed as appellant Nos. 5 and 6.
2. Case as pleaded by the appellants was that deceased Inder Dev was working as a beldar in Beas Sutlej Link Project at Slapper Colony, District Mandi, H.P. On 21.1.1983 deceased along with three other-passengers are stated to have taken lift in the tractor near Slapper. These passengers were to get down at Barmana. It was further pleaded by the appellants that since the deceased and other co-passengers were to get down near Barmana, they asked the driver to stop the same there. The driver of the tractor was driving the tractor in a rash and negligent manner at a high speed and when he was asked to stop it, he applied the brakes and again started the tractor immediately, on account of this rash and negligent act of the driver, deceased Inder Dev fell down from the tractor and was crushed underneath the tyre of the tractor. The appellants claimed that they were solely dependent upon the deceased and they have lost the sole breadwinner. It may be pointed out here that along with the deceased the other co-passengers with him at the relevant point of time were Hari Singh, PW 6, Nika Ram, PW 7 as well as Chet Ram, RW 2. In these premises a compensation of Rs. 3,00,000 was claimed by the appellants, as according to them the deceased was getting wages of Rs. 670/- p.m. and was further earning Rs. 600/- by working as a cobbler.
3. This claim petition was contested by respondent No. 1, Amar Nath, owner, respondent No. 2, driver of the tractor and respondent No. 3, insurer thereof. It may be clarified here that though respondent Nos. 1 and 2 have filed separate written statements, but despite having taken the different stand, they were represented by same set of lawyers.
4. Respondent No. 1 pleaded that the tractor was not a vehicle for carriage of passengers, accordingly, he was not liable for the payment of any compensation. Further, he had not authorised respondent No. 2 to take the passengers, so the act of the driver was unauthorised and illegal not falling within the scope of his authority as an employee, therefore, he was not liable. This respondent further pleaded that appellant No. 1 was not the legally wedded wife of deceased, as such the petition was not maintainable.
5. Respondent No. 2 stated that the deceased Inder Dev and some passengers forcibly got into the tractor and insisted for a lift. He further submitted that all these persons did not leave the tractor despite persuasion and protest of respondent No. 2. Not only this, respondent No. 2 supported the case of respondent No. 1 that he had been prohibited by respondent No. 1 from carrying passengers in the tractor.
6. Respondent No. 3 pleaded that it was not at all liable and that the passengers including the deceased were in drunken state and they forcibly boarded the tractor. Respondent No. 3 further alleged that actually the deceased got down from the tractor swiftly and in that process he lost his balance being under the influence of liquor. Case of this respondent further was that it was not responsible as the risk of passengers like Inder Dev was not covered under the policy as the passengers were being carried in the tractor which was against the provisions of Motor Vehicles Act as well as conditions of insurance policy, Exh. R-l.
7. Parties went to trial on the following issues:
(1) Whether the petitioners are heirs or legal representatives of deceased Inder Dev?
OPP (2) Whether the accident in question was a result of rash and negligent driving on the part of the driver of the tractor?
OPP (3) Whether the owner of the tractor had directed the driver of the tractor not to cany passengers or private persons in the tractor in question?
OPR-1 (onus objected to) (4) Whether the deceased Inder Dev boarded the tractor forcibly while dissuading by the driver of the tractor as alleged and to what effect?
OPR-2 (5) Whether the insurance company is liable to pay compensation to the petitioner and if so, to what amount, if any, the petitioners are entitled and from whom?
OPP (6) Relief.
8. Appellants in support of their case examined as many as nine witnesses. Krishni Devi, PW 1, has supported her case by saying that she is the widow of the deceased whom she had married after her divorce from her previous husband Garibu in the Panchayat on the basis of a written divorce deed and this divorce had taken place five years ago. She has denied the suggestion that the deceased Inder Dev was not either her husband or that appellant Nos. 2 to 4 were not her children from Inder Dev or that her husband was Garibu. She also stated in her examination-in-chief that her husband Inder Dev was working in B.S.L. Project as beldar at Slapper and was also working as a cobbler. According to her, he was earning Rs. 500/- p.m. while working as beldar and was earning Rs. 600 p.m. by selling shoes prepared by him. Deceased did not own any land and was the sole bread-winner of the family. PW 2 is Krishan Dass, Secretary, Gram Panchayat, Dehar. This witness stated that since 1972 he is posted as Secretary of the Gram Panchayat, Dehar and according to him Inder Dev deceased was residing with his family within the Panchayat Circle, Dehar, which consisted of appellant Nos. 1 to 4 and the relevant extract of the Parivar Register, Exh. PW 2/A, has been proved by him from the original record brought by him. Krishan Kumar Patial, PW 3, Supervisor, Power Plant Construction Division, Slapper, states that since 7.11.1967 he remained posted as Supervisor, Power Plant Construction Division, BSL Project, Slapper and according to him deceased Inder Dev at the time of his death was working as a beldar and his total emoluments were Rs. 666/- p.m. Deceased was stated to be working as beldar as per record since 21.1.1970. PW 4 is Dr. M.L. Mahajan, who while working in District Hospital, Bilaspur, had performed the post-mortem examination on the dead body of deceased Inder Dev and a copy of the said post-mortem report has been proved as Exh. PW 4/A. PW 5 is Prem Singh, H.C. No. 106, Police Station, Talai, District Bilaspur. This witness states that he was posted as Moharir Head Constable at Police Station Sadar from 1982 to 1983 and F.I.R. No 32 was registered against Parkash Chand alias Bindoo, driver of vehicle HPM 7141 and a copy of the said F.I.R. has been proved by this witness as Exh. PW 5/A. Hari Singh, PW 6, Nikka Ram, PW 7, were co-passengers with the deceased and Chet Ram, RW 2, who all had boarded the tractor in question from Slapper for coming towards Barmana. Both these witnesses say that at the time of accident the driver of the tractor was driving it at a very high speed and when the tractor was near Barmana, Hari Singh, PW 6, asked the driver to stop the same who at once applied brakes to the fast running tractor as a result of which the occupants of the tractor got a big jolt, resultantly occupants including PW 6 and late Inder Dev fell down from the tractor. As a result of this act of the driver, PW 6 sustained injuries on his forehead and became unconscious. This witness has denied the suggestion that they had boarded the tractor forcibly, despite protest and refusal of the tractor driver. This witness was also admitted to hospital. Later on, he learnt that Inder Dev had died in this accident. In cross-examination on behalf of respondent No. 3, insurance company, he had stated that no fare had been paid for giving lift to the passengers when they had stopped the tractor at the time of boarding it by raising their hands. Similarly, PW 7 states that they were allowed to board the tractor and they boarded it. He also denied the suggestion that all of them boarded the tractor by force and that he, Hari Singh and Inder Dev were under the influence of liquor and the driver had asked them not to board the same. According to him, Chet Ram was not in the tractor but he came to the place of accident after the accident had taken place. PW 8 is Nanku who knew the deceased as he was a resident of village Dehar. According to this witness, the deceased was his co-villager where he was residing with appellant Nos. 1 to 4 and this witness further says that the deceased was serving in B.S.L. Project as beldar and used to prepare shoes at his house and he was earning good income by selling the shoes. PW 9 is Sairoo, appellant. He states that deceased was his son and appellant No. 1 is the widow of Inder Dev. Amongst other things, this witness has said that deceased Inder Dev used to pay him and his wife about Rs. 100/- or Rs. 150/- p.m. towards their maintenance. This witness has further stated that besides working as beldar at B.S.L. Project, deceased used to prepare shoes for augmentation of his income and he used to sell the shoes at Sundernagar. According to this witness, deceased Inder Dev had taken training of shoe making in Government Leather Centre at Sundernagar.
9. Respondent No. 1 appeared as his own witness and stated that he was the owner of the tractor in question and respondent No. 2 was employed by him as a driver. He says that he had not authorised the driver Parkash Chand to give lift to any passenger, though he knew the deceased but he denied Krishni to be his widow being the wife of Garibu. He further states that deceased Inder Dev was not doing any work of leather or shoes at home. When cross-examined, he stated that he had not authorised the driver to take passengers. RW 2 was a co-passenger with the deceased and PWs 6 and 7. According to this witness, all of them got into the tractor forcibly as the driver was not permitting them to board the same and all of them were drunk. He further states that Inder Dev had taken drink too much and deceased and Hari Singh were sitting in the lap of each other. He further goes on to say that he did not know how Inder Dev fell down. The tractor was being driven slowly and he also did not see the deceased selling shoes. RW 3 admits that he was the driver of the tractor in question and had been forbidden by the owner there-of to take passengers. He denied having given lift to any passenger. According to him, Inder Dev, Hari Singh, Chet Ram and Nika Ram had taken drink and along with one more person whose name he did not know forcibly boarded the tractor despite his request to get down. As per this witness, the deceased was in a tottering condition and was unable to walk, he was driving the tractor at a normal speed. In cross-examination, he denied the suggestion that Hari Singh and Daya Ram, etc., had raised their hands for getting lift and that the deceased and another person had boarded the tractor with his permission. RW 4 is Dada Ram, a person running hotel in Slapper since 1967. According to him, Parkash Chand, driver of the tractor, was refusing the passengers to give lift, but because they were in a drunken state they boarded the tractor and this happened on 21.1.1983. These passengers forcibly boarded the tractor and request of driver was not acceded to by the passengers.
10. Respondent No. 1 produced copy of the insurance policy qua the tractor which was admitted by the learned Counsel appearing for the insurance company before the Tribunal (Exh. R-l). The learned Tribunal passed award of Rs. 93,000/-in favour of all the appellants along with interest at the rate of 6 per cent per annum from the date of the award, i.e., 30.11.1985 till the date of payment, however, this award was passed only against respondent No. 2, Parkash Chand driver. While recording findings under issue Nos. 3 and 4, it was held that the owner of the tractor had not agreed to carry unauthorised passengers and it is a case of forceful occupation particularly when they were in a drunken condition. Similarly, insurance company was also exonerated of its liability as according to the Tribunal, it is not liable for unauthorised and illegal carriage of passengers who were trespassers qua the owner and the insurance company. It has further been held that the insurance company had not agreed with the owner for such carriage. Not only this, the benefit of interim relief under Section 92-A of the Motor Vehicles Act was also denied to the appellants because this provision came into force w.e.f. 1.10.1982, whereas the accident had taken place on 21.1.1983 (Sic).
11. It may be pointed out that so far as the findings recorded regarding negligence and the appellant Nos. 1 to 4 being heirs or legal representatives of deceased Inder Dev are concerned, they are conclusive and binding on the parties as none of the respondents has challenged those and similar is the position in respect of the liability that has been fixed on respondent No. 2, driver, who has also not preferred any appeal.
12. In the present appeal, preferred by the appellants, Mr. R.K. Gautam in support of the appeal has raised the following points:
(a) That the respondent Nos. 1 and 3 are jointly and severally responsible along with respondent No. 2, driver and their exoneration is not sustainable;
(b) The owner being vicariously liable for the acts of his authorised driver, Parkash Chand, is also liable for making payment of compensation and consequently, also insurance company is liable to indemnify the insured owner and satisfy the award under Section 96 of the Motor Vehicles Act, 1939;
(c) He has prayed for enhancement of compensation from Rs. 93,000/- to Rs. 3,00,000/- and grant of interest at the rate of 12 per cent on this amount from the date of claim petition, besides costs of the proceedings throughout.
13. Mr. Bhupender Gupta, the learned Counsel appearing for the respondent No. 1, stated that his client has been rightly exonerated by the Tribunal. Alternatively, he has submitted that the tractor being insured with respondent No. 3 the liability, if any, to satisfy the award is that of the said respondent and submitted that in the event of appeal being allowed, respondent No. 3 may be held liable for satisfying the award.
14. Mr. Deepak Gupta, learned Counsel for respondent No. 3, forcefully argued that as per insurance policy, Exh. R-l, the tractor in question was meant for carrying or engaged in the business or occupation of agriculture only and for no other purposes. According to him, the insurance company is not at all liable. Looking to the facts and circumstances of the case, respondent No. 3 cannot be fixed with any liability to satisfy the award.
15. In support of the appeal, Mr. R.K. Gautam has placed reliance on the following cases, namely, State of Madhya Pradesh v. Ratna Devi 1991 ACJ 166 (MP); Bhagwandas v. National Insurance Co. Ltd. 1990 ACJ 495 (MP); Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC); Shivlal v. Rukmabai 1987 ACJ 341 (MP) and Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC).
16. In State of Madhya Pradesh v. Ratna Devi 1991 ACJ 166 (MP), a Division Bench of Madhya Pradesh High Court was examining the plea of the State of Madhya Pradesh that the deceased passengers were not given permission to travel in the jeep and one of them had not even taken permission to leave his headquarters and thus the driver of the vehicle was not permitted to take the jeep to Indore and the State was not responsible for payment of any compensation because the acts of the driver and the victims of the accident were unauthorised and both the deceased, according to the driver of the jeep, were drunk and the accident took place due to negligence of the victims themselves. The appellant State further stated that the victims were travelling in the jeep as unauthorised passengers as they had themselves compelled the driver to unauthorisedly take away the vehicle and the accident was caused due to victims themselves and no compensation was payable to the claimants. Repelling the plea of the State, court in paras 8 and 9 of this judgment held as under:
(8) It is not disputed that the jeep met with an accident, that the respondent Kanhaiyalal was driving it and that victims Biharilal Yadav and Krishna Narayan Dixit were travelling in the said jeep. It is also not disputed that Biharilal Yadav and Krishna Narayan Dixit died on the spot as a result of this accident. It was, however, contended that the jeep was not being driven rashly and negligently. The evidence on this point is that of Manoharlal, AW 3 and Ashok Kumar, AW 6. They have deposed to the effect that they had seen the jeep immediately before the accident, being driven in a rash and negligent manner. They reached the spot immediately after the accident. The learned Member of the Tribunal has rightly relied on their testimonies. In any case, in view of the judgments of the Supreme Court in Rajasthan State Road Trans. Corporation v. Narain Shanker 1980 ACJ 411 (SC) and N.K.V. Bros. (P) Ltd. v. M. Karumai Animal 1980 ACJ 435 (SC), the doctrine of res ipsa loquitur would be applicable to the case looking to the nature of the accident and the surrounding circumstances. In the latter case, the Supreme Court has observed that Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We have, therefore, no doubt that the driver of the jeep was responsible for the accident, which was caused due to his rash and negligent driving. It is also noteworthy that the earlier story put forward by the driver of the vehicle that Biharilal Yadav and Krishna Narayan Dixit fought with each other in a drunken state and fell due to loss of balance on the driver as a result of which the driver lost his control over the vehicle and the accident occurred was abandoned and by amendment it was tried to be suggested that brakes of the vehicle suddenly failed and the accident took place because of this. The reason for the accident suggested earlier by the driver does not appear to be plausible and the latter suggestion that the accident occurred because of failure of brakes clearly seems to be an afterthought.
(9) The next question which was argued before us was relating to the unauthorised driving of the jeep by the respondent Kanhaiyalal and that of the victims being unauthorised passengers, no compensation could be claimed for their deaths. The learned Member of the Tribunal found that driver, Kanhaiya-lal, was returning from Jhabua to Indore without taking permission from his superiors and the victims Biharilal Yadav and Krishna Narayan Dixit were travelling in the jeep without permission of the Government. However, relying on the decision of the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishanker Bhatt 1966 ACJ 89 (SC), the learned Tribunal drew an inference that whenever a driver drives a vehicle entrusted to him, it would be deemed that he is driving it for his employer unless it is shown to the contrary. The Tribunal has also placed reliance on the decision of the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), wherein it has been laid down that the owner is vicariously liable for the act of his driver. Taking into consideration the circumstances of the case, the Tribunal has found that the State Government was responsible for the acts of the driver, Kanhaiyalal. On the point of the victims being unauthorised passengers, the learned Tribunal has relied on the decision reported in Mannalalv. State of M.P. 1986 ACJ 902 (MP), wherein it is decided that even if a driver allows passengers to travel in the vehicle and takes fare from them, in case of accident and injuries to such passengers, even the owner of the vehicle is responsible. Mr. Sujan Jain, learned Counsel for the claimants in this case, has placed reliance on one more decision reported in M.S. Rayta v. Gowrawwa Channabasappa 1987 ACJ 846 (Karnataka). It is a Division Bench ruling of the Karnataka High Court, wherein it has been held that a driver of military goods vehicle who took fare from the passengers on the way in violation of departmental instructions would also make his employer liable to such fare-paying passengers in the truck in case of an accident. We are, therefore, of the opinion that the Tribunal has held the appellants and respondent No. 6 responsible for payment of compensation to the legal representatives of the victims rightly on proper appreciation of evidence.
While dismissing the appeal, the compensation was allowed.
17. In Bhagwandas v. National Insurance Co. Ltd. 1990 ACJ 495 (MP), again a Division Bench of the Madhya Pradesh High Court held that when the driver of truck allowed some persons to travel in the truck by collecting fare and it overturned resulting in the death of two persons and bodily injuries to others travelling in it, insurance company was liable despite policy providing limitation as to use for conveyance of passengers for hire or reward and the plea of the insurance company was negatived. The undisputed facts of this case were that appellant, a licensed driver, was driving the truck in question with a load and five labourers when he stopped the truck and picked up a dozen of persons including deceased/injured persons after recovering fare from them. They were carried on the top of the load in the truck when the owner of the truck was not present. It was rash/negligent driving of the truck by driver which resulted in the accident in question and the death of Phoola, Prabhu and Rajuka and injuries to Ram Parshad claimant. Thus, it is clear that the truck in question was being used for conveyance of passengers for hire or reward, a user expressly not covered by the policy, which user also contravened the provisions of Rule 111 of M.P. Motor Vehicles Rules 1974. While dismissing the appeal of the appellants and allowing cross-objections of the claimants and thereby holding the insurance company liable for payment of compensation. Relevant paras of this judgment are to the following effect:
(26) The common submission of the appellants and the claimants, directed against the insurance company, is that the law laid down by the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), establishes their plea that the National Insurance Co. Ltd. is also liable to satisfy the award to the extent specified in the insurance policy.
(27) The facts were that the truck had unloaded the goods at Baroda. The owner of the truck was not there. The truck had been in the charge of a licensed truck driver, accompanied by a cleaner who did not hold any driving licence. The driver left the truck, with the engine running and the ignition key in the ignition lock and had left the control of the truck to the cleaner. The cleaner started the truck in the absence of the driver resulting in an accident. Admittedly, the truck was used by a person not duly licensed. The insurance policy had an exclusion clause, prohibiting driving of the vehicle in question by a person not duly licensed. The High Court of Gujarat held that the insurance company was liable to satisfy the award passed against the truck owner and the truck driver. It was observed:
... The owner in the present case never gave permission to this cleaner to drive and, therefore, the owner, even though he had become liable by reason of his vicarious liability, could not be held guilty of the breach of the contractual condition embodied in the policy of insurance. Therefore, the insurer cannot plead any exemption on the ground that the owner had committed breach of the specified condition....
Before the Supreme Court the appellant insurance company took the plea that once it was established that the accident occurred when an unlicensed person was the driver the insurance company would be exonerated from the liability. The reason advanced was that the exclusion clause in the insurance policy is strictly in accordance with the statu-torily permissible exclusion embodied in Section 96 (2) (b) (ii) of the Motor Vehicles Act.
(28) The Supreme Court observed that the validity of this argument advanced by the insurance company had to be tested in the light of the provisions contained in Sections 96 (1) and 96 (2) (b) (ii) of the Motor Vehicles Act.
(29) The Supreme Court held that the exclusion clause did not exonerate the insurer.
(30) At para 12 of the judgment their Lordships gave three reasons for rejecting the defence of the insurance company which run as follow:
'(1) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he himself is not guilty of a deliberate breach.
(2) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.
(3) The exclusion clause has to be 'read down' in order that it is not at war with the 'main purpose' of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise.' (31) At para 13 of the judgment, their Lordships of the Supreme Court highlighted the goals set by the provisions of Sections 94 and 96 of the Motor Vehicles Act and their vital role in the interpretation of the exclusion clauses in the insurance policy.
'In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. Ordinarily, it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not. If the vehicle is not insured, any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. Why then has the legislature insisted on a person using a motor vehicle in a public place to insure against third party risk by enacting Section 94? Surely, the obligation has not been imposed in order to promote the business of the insurers engaged in the business of automobile insurance. The provision has been inserted in order to protect the members of the community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependants of the victims in the case of a fatal accident. However, any such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the courts would be recoverable from the persons held liable for the consequences of the accident. A court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recovered from the person held liable who may not have the resources. The exercise undertaken by the law courts would then be an exercise in futility. And the outcome of the legal proceedings which by the very nature of things involve the time cost and money cost invested from scarce resources of the community would make a mockery of the injured victims or the dependants of the deceased victim of the accident, who themselves are obliged to incur not inconsiderable expenditure of time, money and energy in litigation. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence. The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the contract of policy. In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Section 96 and by providing that except and save to the extent permitted by Section 96 it will be the obligation of the insurance company to satisfy the judgment obtained against the persons insured against third party risks (vide Section 96). In other words, the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the dependants of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles, notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has, therefore, to be interpreted in the twilight of the aforesaid perspective.' (32) At para 14, the Supreme Court examined the subject of the immunity to the insurance company consequent upon the breach of the condition in Section 96(2)(b)(ii). It was stated:
... The expression 'breach' is of great significance. The dictionary meaning of 'breach' is 'infringement or violation of a promise or obligation'. (See Collins English Dictionary). It is, therefore, abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is not duly licensed will not be in charge of the vehicle. The very concept of infringement or violation of the promise that the expression 'breach' carries within itself induces an inference that the violation or infringement on the part of the promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the insurance company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise...And it is only in case of a breach or a violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause....
(33) Their Lordships of the Supreme Court extracted Section 84 pertaining to stationary vehicles which runs as follows:
'84. Stationary Vehicles.-No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measure taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.' (34) To deal with the effect of the aforementioned Section 84 their Lordships observed as follows:
'In view of this provision apart from the implied mandate to the licensed driver not to place a non-licensed person in charge of the vehicle, there is also a statutory obligation on the said person not to leave the vehicle unattended and not to place it in charge of an unlicensed driver. What is prohibited by law must be treated as a mandate to the employee and should be considered sufficient in the eye of law for excusing non-compliance with the conditions. It cannot, therefore, in any case be considered as a breach on the part of the insured. To construe the provision differently would be to rewrite the provision by engrafting a rider to the effect that in the event of the motor vehicle happening to be driven by an unlicensed person regardless of the circumstances in which such a contingency occurs, the insurer will not be liable under the contract of insurance.' (35) Their Lordships of the Supreme Court highlighted the problem by further observing as follows:
'It needs to be emphasised that it is not the contract of insurance which is being interpreted. It is the statutory provision defining the conditions of exemption which is being interpreted. These must, therefore, be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim. To do otherwise would amount to nullifying the benevolent provision by reading it with non-benevolent eye and with a mind not tuned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the legislature has given, the court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent.
In fact it appears that the former view is more plausible apart from the fact that it is more desirable. When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by it by way of business activity, there is hardly any choice. The court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, The very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the 'exclusion clause' does not cross swords with the 'main purpose' highlighted earlier. The effort must be to harmonise the two instead of allowing the exclusion clause to snipe successfully at the main purpose.' (36) Their Lordships also referred to para 251 in Cater's Breach of Contract which was extracted in the judgment as follows:
'Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the 'main purpose rule', which may limit the application of wide exclusion clauses defining a promisor's contractual obligations. For example, in Glynn v. Margetson & Co. (1893) AC 351, Lord Halsbury, L.C. stated:
'It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument and seeing what one must regard...as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.
Although the rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societe D' Armement Maritime, S.A. v. N.V. Rotterdamsche Kolen Centrale (1967) 1 AC 361. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract.' (Emphasis added) (37) The following is a conspectus of the law enunciated in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC):
An owner of a motor vehicle or a person employed by him to drive the motor vehicle, driving the vehicle rashly or negligently causes an accident resulting in the infliction of injuries on a person travelling in the vehicle or using a public road. The driver is liable in tort to pay compensation to them receiving injuries in the accident or to the dependants of the persons dying in the accident. If the driver of the vehicle is an employee of the owner, the latter is vicariously liable to pay the compensation. The fact that a judgment or an award has been passed against the persons held liable as aforesaid, does not necessarily ensure payment of the compensation by the truck owner and/or the truck driver to the claimants. For one thing, the truck owner and/or the driver may not have means or sufficient means to meet their liability.
The legislature stepped in and enacted the provisions contained in Chapter VIII of the Motor Vehicles Act, 1939. Section 94 made it compulsory for the owner of the motor vehicle to take out a policy of insurance in accordance with the provisions of Chapter VIII of the Act, before using his motor vehicle in a public place. (The driving of an uninsured vehicle, in contravention of the provisions of Section 94, is made punishable with imprisonment or fine or both under Section 125 of the Motor Vehicles Act, 1939).
Once an insurance policy is taken out fulfilling the requirements of Chapter VIII and a certificate of insurance has been issued under Sub-section (4) of Section 95 and then an accident results from the user of the motor vehicle in a public place, the claimant, that is, the injured person or the dependants of the person dying in the accident, file a claim petition for compensation. Then under Sub-section (2) of Section 96, a notice of the claim proceeding has to be given to the insurer through the court. If it is established in the proceeding that the truck driver and the owner of the truck, that is, the insured, are found liable in the proceeding to pay compensation to the claimants, the insurance company in question is bound to pay to the claimants a sum not exceeding the sum assured, as if the insurance company were the judgment debtor in respect of the liability, together with interest payable on the compensation and also the costs of the proceeding.
The insurance company may defend the proceeding on the grounds set out in Clauses (a), (b) and (c) of Sub-section (2) of Section 96.
If the insurance company relies on the conditions specified in Sub-clause (i) or Sub-clause (ii) of Clause (b) of Sub-section (2) of Section 96, the insurance company cannot stand absolved merely on proof that the conditions mentioned in Sub-clauses (i) and (ii) of Clause (b) of Sub-section (2) of Section 96 have been taken care of by the facts and circumstances of the case. The insurance company has to prove that there was a breach of the conditions in question, that is, wilful infringement or violation committed by the insured. If the insurance company fails to establish all this and it is found that the insured is not at all at fault and has not done anything he should not have done, or was not amiss in any respect, then the insurance company cannot succeed on the strength of the exclusion clause in the insurance policy in respect of condition complained of. This view of the law is based on the hypothesis that the conditions referred to in Section 96 (2) (b) (i) and (ii) are not absolute ones. Hence, if the insured could show that he himself was not guilty of a deliberate breach of the condition, the insurance company must be made to fulfil its statutory obligations under Section 96 (1).
(38) At any rate, any statutory rule providing for penal consequences for the breach of the condition by the driver could not, therefore, in any case be taken as a breach on the part of the insured himself.
(39) It is only the aforementioned interpretation which is at peace with the conscience of Section 96, involving, of necessity, of 'reading down' of the exclusion clause in the insurance policy to the extent that it is not at war with the 'main purpose' of the provisions enacted for the protection of victims of the accident, that is, to ensure them a quick payment of the compensation by the insurance company, because it was for this purpose and not for the purpose of promoting the business of the insurers engaged in the business of automobile insurance that the provisions of Chapter VIII of the Act were enacted.
(40) The law enunciated by Supreme Court in Skandia Insurance Co. Ltd. 's case 1987 ACJ 411 (SC), applies to the facts and the circumstances of the case before us. Here, the truck owner himself did not carry the accident-victims for hire or reward. He was, therefore, not guilty of the breach of the condition excluding the use of the vehicle for a purpose not allowed by the permit under which the vehicle was used, that is, of item (c) of Sub-clause (i) of Clause (b) of Sub-section (2) of Section 96, or of the conditions of limitation as to the user of the vehicle contained in the insurance policy, extracted at para 20 (supra). It may be underscored that the provisions of items (a), (b), (c) and (d) of Sub-clause (i) and the provisions of Sub-clause (ii) of Clause (b) of Sub-section (2) of Section 96 have been categorised together under Clause (b). Hence, the effect given in the Supreme Court judgment to Sub-clause (ii) of Clause (b) of Sub-section (2) of Section 96 would apply with equal force to the effect of Sub-clause (i) of Clause (b) of Sub-section (2) of Section 96. It is clear that the National Insurance Co. Ltd. is bound under Section 96 (1) as if it were the judgment debtor to pay to the claimants compensation up to the extent of the sum assured in the insurance policy.
(41) Before discussing these rulings, it would be appropriate to see what the Supreme Court judgment in Skandia Insurance Co. Ltd.'s case 1987 ACJ 411 (SC), said about the case-law found to be inadequate and not of any help in resolving the issues that arose in the Supreme Court case.
xxx xxx xxx (73) For the foregoing reasons, according to me, the pendency of the instant appeal and the cross-objection claiming benefit of Section 92-A, has given jurisdiction to this Court to hold the insurer liable for satisfying the award passed by the Tribunal. In my view, the Tribunal's award suffers a patent error of law impairing partially the validity thereof as it has exonerated the insurer even after rightly invoking Section 92-A. To the limited liability whether of the owner or the insurer in respect of the amount of compensation specified therein payable in the case of a death or partial disablement in a motor accident, there can be no valid defence by either. Indeed, the overriding and pervasive effect of Section 92-E achieves that position and there would be no impact on that of insurer's success or failure in establishing its defence under Section 96 (2) whose relevance must be restricted to the determination of the claim under Section 110-A, for higher amount. This view is not affected, let it be noted, by the Apex Court's holding in Skandia Insurance Co. Ltd. 's case 1987 ACJ 411 (SC), for the simple reason that neither Section 92-A, et. seq., was interpreted nor impact thereof on Section 96 (2) was considered in that case.
18. In Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), the Apex Court held that when the car was being driven by the Manager of the company for the purpose of company's business and the Manager permitted the passengers to travel with him in the car, which met with an accident resulting in the death of the passengers, it was held that the accident was due to negligence of the servant in the course of employment and the master was held liable. Relevant paras of this judgment dealing with this aspect of the case are to the following effect:
(7) The second contention that was raised by the counsel for the appellants is that the High Court was in error in holding that the incident did not take place in the course of the employment or under the authority of the company. The High Court found that there is no evidence that the owner of the vehicle was aware that Purshottam was being taken in the car as a passenger by Madhavjibhai and in the circumstances, the owner cannot be held liable for the tortious act of the servant. The High Court found that the car was going from Nagpur to Pandhurna on the business of the company and it may also be that Madhavjibhai, the Manager of the owner of the car, was also going on business of the owner and it may also be that he had the implied authority to drive the vehicle. Having agreed with the contentions of the claimants so far, the High Court came to the conclusion that there were no pleadings or material on record to establish that Purshottam was travelling in the vehicle either on some business of the owner of the vehicle or under any ostensible authority from them to their Manager Madhavjibhai to take Purshottam as a passenger in the vehicle. Before dealing with the right of Purshottam as a passenger, we will consider the question whether the accident took place during the course of the employment of Madhavjibhai by the company. It is admitted in the written statement by the owner that Madhavjibhai was the Manager of opposite party No. 1 and that the vehicle was proceeding from Nagpur on its way to Pandhurna for purpose of delivering an amount of Rs. 20,000/- to the Ginning and Pressing factory at Pandhurna. The Tribunal found the pleadings that Madhavjibhai was the employee of the company and during the course of employment by driving the motor car he negligently caused the death of Purshottam. The High Court also confirmed the findings and found that Madhavjibhai, the Manager of the owner of the car, was going on the business of the said owner and that it may be that the Manager had the implied authority to drive the vehicle. On such a finding which is not disputed before us, it is difficult to resist the conclusion that the accident was due to the negligence of the servant in the course of his employment and that the master is liable. On the facts found the law is very clear but as the question of the company's liability was argued at some length we will proceed to refer to the law on the subject.
(8) It is now firmly established that the master's liability is based on the ground that the act is done in the scope or course of his employment or authority. The position was stated by Lord Justice Denning in Young v. Edward Box and Co. Ltd. (1951) 1 TLR 789. The plaintiff and fellow-workmen were given a lift on one of the defendant's lorries with the consent of his foreman and of the driver of the lorry. On a Sunday evening the plaintiff, in the course of that journey, was injured by the negligence of the driver of the lorry and the plaintiff brought an action against the defendants claiming damages for his injuries. The defence was that the plaintiff, when on the lorry, was a trespasser. The traffic manager of the defendants pleaded that he had never given instructions to the foreman that he should arrange for lifts being given to the plaintiff and his fellow-workmen on Sundays and that the foreman had no authority to consent to plaintiff's riding on the lorry. While two learned Judges held that the right to give the plaintiff leave to ride on the lorry was within the ostensible authority of the foreman and that the plaintiff was entitled to rely on that authority and in that respect was a licensee, Lord Denning held that although the plaintiff, when on the lorry, was a trespasser, so far as the defendants were concerned, the driver was acting in the course of his employment in giving the plaintiff a lift and that was sufficient to make the defendants liable and that he did not base his judgment on the consent of the foreman. Lord Justice Denning stated the position thus:
'...the first question is to see whether the servant was liable. If the answer is yes, the second question is to see whether the employer must shoulder the servant's liability. So far as the driver is concerned, his liability depends on whether the plaintiff was on the lorry with his consent or not...
The next question is how far the employers are liable for their servant's conduct. In order to make the employers liable to the passenger it is not sufficient that they should be liable for their servant's negligence in driving. They must also be responsible for his conduct in giving the man a lift. If the servant has been forbidden, or is unauthorised, to give anyone a lift, then no doubt the passenger is a trespasser on the lorry so far as the owners are concerned; but that is not of itself an answer to the claim.... In my opinion, when the owner of a lorry sends his servant on a journey with it, thereby putting the servant in position not only to drive it, but also to give people lifts in it, then he is answerable for the manner in which the servant conducts himself on the journey, not only in the driving of it, but also in giving lifts in it, provided, of course, that in so doing the servant is acting in the course of his employment.' Lord Justice Denning concluded by observing that the passenger was, therefore, a trespasser, so far as employers were concerned; but nevertheless the driver was acting in the course of his employment and that is sufficient to make the employers liable. It will thus be seen that while two of the learned Judges held that the right to give the plaintiff leave to ride on the lorry was within the ostensible authority of the foreman and the plaintiff was entitled to rely on that authority as a licensee, Lord Denning based it on the ground that even though the plaintiff was a trespasser so far as the defendants were concerned, as the driver was acting in the course of his employment in giving the plaintiff a lift it was sufficient to make the defendants liable. Applying the test laid down there can be no difficulty in concluding that the right to give leave to Purshottam to ride in the car was within the ostensible authority of the Manager of the company who was driving the car and that the Manager was acting in the course of his employment in giving leave to Purshottam. Under both the tests the respondents would be liable.
xxx xxx xxx (14) Before we conclude we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term 'in the course of the employment' as ordinarily understood. We have referred to Sitaram Motilal Kalal v. Santanu-prasad Jaishankar Bhatt 1966 ACJ 89 (SC), where this Court accepted the law laid down by Lord Denning in Ormrod v. Crosville Motor Services Ltd. (1953) 2 All ER 753, that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes. This extension has been accepted by this Court. The law as laid down by Lord Denning in Young v. Edward Box and Co. Ltd. (1951) 1 TLR 789, already referred to, i.e., the first question is to see whether the servant is liable and if the answer is yes, the second question is to see whether the employer must shoulder the servant's liability, has been uniformly accepted as stated in Salmond Law of Torts, 15th Edn., p. 606, in Crown Proceeding Act, 1947 and approved by the House of Lords in Staveley Iron & Chemical Co. Ltd. v. Jones (1956) AC 627 and I.C.I. Ltd. v. Shatwell (1965) AC 656. The scope of the course of employment has been extended in Navarro v. Moregrand Ltd. (1951) 2 TLR 674, where the plaintiff who wanted to acquire the tenancy of a certain flat, applied to the second defendant, a person with ostensible authority to conduct the business of letting the particular flat: for defendant No. 1, the landlord. The defendant No. 2 demanded from the plaintiff a payment of £ 225 if he wanted the flat and the plaintiff paid the amount. The plaintiff sought to recover the sum from the landlord under the Landlord and Tenant (Rent Control) Act, 1949. The Court of Appeal held that the mere fact that the defendant No. 2 was making an illegal request did not constitute notice to the plaintiff that he was exceeding his authority and that, though the defendant No. 2 was not acting within his actual or ostensible authority in asking for the premium as the landlord had entrusted him with the letting of the flat and as it was in the very course of conducting that business that he committed the wrong complained of; he was acting in the course of his employment. Lord Denning took the view that though the defendant No. 2 was acting illegally in asking for and receiving a premium and had no actual or ostensible authority to do an illegal act, nevertheless he was plainly acting in the course of his employment, because his employers, the landlords, had entrusted him with the full business of letting the property and it was in the very course of conducting that business that he did the wrong of which complaint is made. This decision has extended the scope of acting in the course of employment to include an illegal act of asking for and receiving a premium though the receiving a premium was not authorised. We do not feel called upon to consider whether this extended meaning should be accepted by this Court. It appears Lord Goddard, Chief Justice, had gone further in Barker v. Levinson 66 TLR (Pt. 2) 717 and stated that 'the master is responsible for a criminal act of the servant if the act is done within the general scope of the servant's employment'. Lord Justice Denning would not go to this extent and felt relieved to find that in the authorised Law Reports, (1951) I KB 342, the passage quoted above was struck out. We respectfully agree with the view of Lord Denning that the passage attributed to Lord Chief Justice Goddard went a bit too far.
(15) On a consideration of the cases, we confirm the law as laid down by this Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt 1966 ACJ 89 (SC) and find that in this case the driver was acting in the course of his employment and as such the owner is liable. We, therefore, set aside the finding of the High Court that the act was not committed in the course of employment or under the authority of the master and allow the appeal.
19. Another case on which reliance was placed by Mr. R.K. Gautam is Skandia Insurance Co. Ltd. v. Kokilaben Chandra-vadan 1987 ACJ 411 (SC), amongst other questions, the matter which was under consideration before the Apex Court was in relation to interpretation of exclusion clause and meaning of expression 'breach'. After examining the provision of Motor Vehicles Act, as well as construing the terms of policy, the appeal of the insurance company was disallowed and the insurance company was held responsible. Relevant paras from this judgment are 12 and 13 as under:
(12) The defence built on the exclusion clause cannot succeed for three reasons, viz:
(1) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he himself is not guilty of a deliberate breach.
(2) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.
(3) The exclusion clause has to be 'read down' in order that it is not at war with the 'main purpose' of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise.
(13) In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. Ordinarily, it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not. If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. Why then has the legislature insisted on a person using a motor vehicle in a public place to insure against third party risk by enacting Section 94. Surely, the obligation has not been imposed in order to promote the business of the insurers engaged in the business of automobile insurance. The provision has been inserted in order to protect the members of the community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependants of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the courts would be recoverable from the persons held liable for the consequences of the accident. A court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recovered from the person held liable who may not have the resources. The exercise undertaken by the law courts would then be an exercise in futility. And the outcome of the legal proceedings which by the very nature of things involve the time cost and money cost invested from the scarce resources of the community would make a mockery of the injured victims or the dependants of the deceased victim of the accident, who themselves are obliged to incur not inconsiderable expenditure of time, money and energy in litigation. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence. (See Section 94 of the Motor Vehicles Act). The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the contract of policy. In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Section 96 and by providing that except and save to the extent permitted by Section 96 it will be the obligation of the insurance company to satisfy the judgment obtained against the persons insured against third party risks. (Vide Section 96). In other words, the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the dependants of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles, notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has, therefore, to be. interpreted in the twilight of the aforesaid perspective.
20. Mr. Bhupender Gupta also tried to support his submissions with reference to the aforesaid judgment and prayed that the liability may be fixed upon the insurance company as admittedly the contract of the insurance company vide Exh. R-1 is there regarding which there is no dispute and respondent No. 3 is liable to satisfy the award in terms of Exh. R-1 and prayed accordingly.
21. Mr. Deepak Gupta has referred to number of cases and also made special reference to the cases of tractor accidents where the insurance company has been exonerated. He drew our attention to United India Insurance Co. Ltd. v. Manjulaben Purshottamdas Patel 1994 ACJ 740 (Gujarat); Bhoi Vanaji Dhulaji v. Patel Shivabhai Kashibhai 1981 ACJ 107 (Gujarat); Shivlal v. Rukmabai 1987 ACJ 341 (MP); Amrit Kaur v. Chaman Lal 1993 ACJ 770 (HP); United India Insurance Co. Ltd. v. Abdul Munaf Majur Hussain Momin 1984 ACJ 653 (Bombay), where it has been held that the owner though liable vicariously for the act of the driver, insurance company is not liable in the facts of that case. Similarly, in Kaushalya Devi v. Dr. Lakhbir Sood 1994 ACJ 12 (HP), a Division Bench of this Court held that in the case of a passenger being carried by the owner of the car, insurance company is not liable for payment of compensation in respect of injuries sustained by such passenger though he is entitled to recover compensation from the owner. Reliance has also been placed by Mr. Deepak Gupta on cases reported in Machiraju Visalakshi v. Treasurer, Council of India, Mission of the, Luthern Church in America, Guntur 1978 ACJ 314 (AP), Kanniammal v. Prabhakar 1989 ACJ 489 (Madras), United India Insurance Co. Ltd. v. Abdul Munaf Majur Hussain Momin 1984 ACJ 653 (Bombay) and Jibana-nanda Mohanty v. Artatrana Misra 1992 ACJ 851 (Orissa). Lastly, he submitted on the basis of Bhanwarsingh v. Gatubai 1989 ACJ 1137 (MP), that though owner is vicariously liable, insurance company is not at all liable. Mr. Deepak Gupta further stressed his arguments by submitting that the liability of insurance company is not at all there as the use of the vehicle in terms of insurance policy was 'agricultural only' and passengers were excluded from being carried in the tractor in question, thus the award passed by the Tribunal exonerating the insurance company deserves to be upheld and he prayed accordingly.
22. In the instant case there is no dispute regarding the fact that the deceased Inder Dev had died as a result of the accident in question. The sole question that needs to be determined in the present appeal is whether he was authorised by driver who was admittedly acting under the authority of the owner respondent No. 1 in the course of his employment. We may at this stage point out that the plea raised by respondent Nos. 1 and 2, i.e., owner and driver respectively whereby it had been pleaded by the owner that he had specifically instructed the driver not to carry passengers which plea was supported by the driver appears to be an afterthought, simply to absolve the owner. Possibility of their having thought that insurance company being not held responsible in terms of Exh. R-l, then the owner must also be absolved and thereby driver being held responsible from whom chances of recovery appear to be almost nil, which is clear from his conduct in the proceedings. Needless to submit that had the plea of the driver been genuine and he being a man of means and substance, he would have contested the present appeal also. He not only absented in the present appeal, but also did not prefer any appeal against the award. So the stand taken in this behalf by the owner as well as by the driver deserves to be negatived and we hold accordingly.
23. Similarly, the stand of the driver that the deceased and other persons had boarded the tractor forcibly despite his having asked them to get down from the tractor also appears to be totally fallacious and has been rightly held to be so by the Tribunal. If the passengers had boarded the tractor forcibly there was nothing which prevented the driver to have stopped the same and refused to drive it, unless the deceased and other passengers had got down. However, it is admitted case of the driver that the deceased and other persons forcibly boarded the tractor and they were in a drunken state, the driver further goes on to say that there was no rash or negligent driving on his part. If that was so, it was more the reason that the driver ought to have stopped the tractor and refused to drive the same but instead of doing so he continued with driving of the tractor in question. In these circumstances, we are constrained to hold that the deceased and other persons had boarded the tractor in question with the consent of the driver and the findings on negligence not having been challenged by either of the respondent Nos. 1 and 2 none of the respondents can escape their liability from payment of compensation and the evidence to the contrary of RWs 1 to 3 is hereby rejected and consequently the findings recorded by the Tribunal under issue Nos. 3 and 4 are liable to be reversed and it is ordered accordingly.
24. The Tribunal has erred in holding that in the event of there being violation of Rule 4.60 of Punjab Motor Vehicles Rules 1940, the owner was not liable for unauthorised passengers in goods vehicle as the owner of the tractor did not in any way authorise or acquiesce in the carrying of the deceased in the vehicle as passenger who must be deemed as a trespasser.
25. The Motor Vehicles Act, 1939, provides for the insurance of vehicles and a statutory duty is cast upon the insurance company under Section 96 of the said Act to satisfy the award passed against the insured. As has been held by us that the plea of the owner and the driver is purely afterthought in the circumstances and in our view the insurance company is not entitled to take benefit of such plea raised by both of them to defeat and deny the legitimate claim of the claimants and thus leaving them high and dry without any recourse.
26. Consequently, it is held that not only driver Parkash Chand, but also the owner Amar Nath is vicariously liable for the act of his authorised driver who while admittedly driving the tractor in the course of his employment as an authorised driver had permitted the deceased and other persons to board the tractor in question which resulted in the death of Inder Dev. It is further held that insurance company is liable to satisfy the award in question having admittedly insured the vehicle in question. Incidentally, it may be pointed out that exclusion as per Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), was required to be proved by respondent No. 3, insurance company, who in the present case has simply tendered policy of insurance, Exh. R-l, without having proved anything more than that. In case it wanted to exonerate itself, then as per observation in National Insurance Co. Ltd. v. Nathibai Chatura-bhuj 1982 ACJ 153 (Gujarat), respondent No. 3, insurance company, was required to prove that on the date of contract of insurance, insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward, that there was a specific condition in the policy which excluded the use of insured vehicle for the carriage of any passenger for hire or reward and the vehicle was in fact used in breach of such specific condition on the occasion giving rise to the claim for reason of carriage of passengers therein for hire or reward. If all these conditions were established by the insurer, it will not be liable to satisfy such an award. Insurance company in the present case was satisfied by merely tendering a copy, Exh. R-1 and by stating that the copy tendered by the insured is not disputed and thus exhibited the same without specifying as to what was the nature of the risk covered, what was not covered and why it was not liable to cover under law. Mere tendering and exhibiting a document does not either prove the same or dispense with its proof. On this ground also the present appeal deserves to be allowed. It is held that respondent Nos. 1 and 2 are liable jointly and severally for the payment of compensation awarded to appellants and respondent No. 3, insurance company, is liable to satisfy the said award and it is ordered accordingly.
27. Mr. R.K. Gautam has prayed for enhancement of compensation. In our view the compensation has been rightly awarded on the basis of material on record and the multiplier has also been rightly chosen. While taking this view, we are supported by a decision of the Apex Court reported in General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas 1994 ACJ 1 (SC). Thus, the claim of the appellants made in this behalf is rejected. Lastly, Mr. Gautam has prayed for allowing interest from the date of filing of the claim petition, i.e., 18.2.1983 at the rate of 12 per cent per annum instead of from the date of award, i.e., 30.11.1985 that too at the rate of 6 per cent per annum. We find force in this submission and we accordingly modify the award by holding that the appellants shall be entitled for payment of the awarded amount along with interest at the rate of 9 per cent per annum from the date of presentation of the claim petition before the Tribunal, i.e., 18.2.1983 instead of date of award, i.e., 30.11.1985 as ordered by the Tribunal and it is ordered accordingly.
28. No other point has been urged by any of the parties in this appeal.
29. As a result of the above discussion, this appeal is allowed thereby modifying the award of Tribunal as under:
(a) that the liability of respondent Nos. 1 to 3 is joint and several and respondent No. 3 is liable to satisfy the award and pay the amount as awarded by the Tribunal in the sum of Rs. 93,000/-;
(b) Appellants shall be entitled for payment of interest at the rate of 9 per cent per annum on the sum of Rs. 93,000/-with effect from 18.2.1983 till the date of payment;
(c) Appellants are also held entitled to costs of this appeal which are quantified at Rs. 2,000/- payable by the respondents.