Gujarat High Court
United India Insurance Co.Ltd vs Dalsing Surpal Damor & on 14 August, 2013
Author: M.D.Shah
Bench: M.D. Shah
UNITED INDIA INSURANCE CO.LTD.....Appellant(s)V/SDALSING SURPAL DAMOR C/FA/2070/1992 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2070 of 1992 With FIRST APPEAL NO. 2071 of 1992 With FIRST APPEAL NO. 2072 of 1992 With CROSS OBJECTION NO. 320 of 2001 In FIRST APPEAL NO. 2070 of 1992 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.D. SHAH ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ UNITED INDIA INSURANCE CO.LTD.....Appellant(s) Versus DALSING SURPAL DAMOR & 3....Respondent(s) ================================================================ Appearance: MR NAVNIT M TAILOR, ADVOCATE for the Appellant(s) No. 1 MR VA MANSURI, ADVOCATE for the Respondent(s) No. 1 - 2 NOTICE NOT RECD BACK for the Respondent(s) No. 4 RULE SERVED for the Respondent(s) No. 1 - 2 , 4.1 - 4.6 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.D. SHAH Date : 14/08/2013 COMMON ORAL JUDGMENT
These three first appeals have been filed by the original opponent No.3-Insurance Company being aggrieved and dissatisfied with the common judgment and award dated 30-9-1989 passed by the Motor Accidents Claims Tribunal (Main), Panchmahals at Godhra, in MACP Nos.102 of 1985, 107 of 1985 and 108 of 1985 respectively. However, Cross Objection No.320 of 2001 in First Appeal No.2072 of 1992 has been filed by one of the claimants for enhancement of compensation.
Facts in short are that 7 claim petitions arose out of the same accident which occurred on 29-1-1985 at about 4.00 p.m. It was contended that the deceased Bai Urmila and other claimants were working as labourers on Tractor No.GAM-6036 with Trolly No.GRY-6173 on a daily wage of Rs.20/- for loading and unloading work of soil. It was further contended that when the tractor-trolley in which the deceased and injured persons were travelling reached near Shyama Talkies, due to rash and negligent driving of opponent No.1, tractor-trolly turned turtle and deceased and injured persons were thrown off from the trolly causing fatal injuries to one person and injuries to other persons. Upon hearing the learned advocates appearing for the respective parties and considering oral as well as documentary evidence on record, the impugned common judgment and award was passed by the Tribunal.
I have heard learned advocates, Mr.Navnit M.Tailor for the appellant Insurance Company and Mr.MTM Hakim for Mr.V.A.Mansuri for the original claimants and have also taken into consideration the impugned judgment and award together with relevant oral as well as documentary evidence.
Learned advocate, Mr.Tailor submitted that the persons met with the accident while travelling in trolly as gratuitous passengers and not as labourers and, therefore, considering the terms and conditions of policy, insurance company is not liable to pay any compensation. He took this Court through the policy more particularly endorsement No.16 of the policy and submitted that premium for carrying labourers as gratuitous passengers was not paid and premium was paid only for driver, cleaner and third party and, therefore, insurance company is not liable for payment of compensation. In this connection, he placed reliance on the cases of Oriental Insurance Co.Ltd. Vs. Brij Mohan and Ors reported in AIR 2007 Supreme Court 1971.
Mr.Hakim submitted that accident took place on 29-1-1985 prior to the Motor Vehicles (Amendment) Act, 1994 and, therefore, ratio laid down in the aforesaid judgment relied on by learned advocate for the appellant would not be applicable as in the reported case, incident took place on 11-3-1998. It is also submitted that under the Old Act, if labourers were travelling in the trolly, insurance company is liable to pay compensation. According to him, there is ample evidence on record to prove that claimants and deceased were travelling as labourers employed by the employer. It is clear from the evidence of employer also that the labourers were employed by him and were going in the trolly for loading and unloading of soil. Drawing attention of this Court towards Sec.95(2)(b)(i) of the Motor Vehicles Act, 1939, he submitted that passengers carried in pursuance of a contract of employment would fall within the said section and, therefore, statutory liability of the insurer would be limited to Rs.1,50,000/- and in that case, no policy is required to be produced. In this regard, he has relied on the judgments of Husseinbhai Ahmedabhai Memon Vs. Mangiben, Wd/o Lallubhai Holibhai Chaudhari and others reported in 1984(1) GLR page 221 and United India Insurance Co.Ltd. Vs. Jyotsnaben, wd/o Madhusudan Shantilal Bhatt & Ors. reported in 1999(1)G.L.H. Page 334.
This Court has gone through the impugned judgment and award as well as records and proceedings pertaining to this case. It prima facie appears from the impugned judgment and award that present appellant Insurance Company has taken the defense before the Tribunal that deceased and other injured persons were travelling in the trolly not as labourers or cleaner and, therefore, claim was required to be dismissed. No other contention has been raised by the insurance company before the Tribunal. In the appeal memo also, only ground taken by the insurance company was that one deceased person and other injured persons were travelling not as labourers but as gratuitous passengers which is prima facie breach of terms and conditions of policy and hence, insurance company is not liable to pay compensation.
On going through the impugned judgment and award, it is apparent that sufficient evidence has been produced by the claimants to prove that all the passengers, except one person who was travelling as cleaner, were travelling as labourers in the trolly for loading and unloading the work of soil at a daily wage of Rs.20/- which means that they were carried in the vehicle as labourers employed by their employer. Since the claimants and the deceased were carried in the vehicle as the labourers employed by their employer in pursuance of a contract of employment, the claim would fall within Sec.95(2)(b)(ii) of the Motor Vehicles Act, 1939 and in that case, the insurer would be statutorily liable to pay compensation to the extent specified under the Act. Section 95 of the Amendment Act reads as under:
"95.
Requirements of policies and limits of liability.-(1)
In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorized insurer [or by a co-operative society allowed under section 108 to transact the business of an insurer], and [(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:] Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or
(iii) to cover any contractual liability.
[Explanation.-
For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2)Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident, up to the following limits, namely-
(a) where the vehicle is a goods vehicle, a limit of [fifty] thousand rupees in all, including the liabilities, if any, arising under the Workmen s Compensation Act, 1923(8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle;] [(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment,--
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all; ....
Thus, the claimants and legal heirs of the deceased were entitled to get compensation to the extent specified under the Act and hence, the insurance company would be liable to satisfy the impugned awards. Reliance is placed on the judgment delivered by this Court in the case of Jyotsnaben (supra) relied on by learned advocate for the original claimants. Therefore, this Court is not disturbing the findings arrived at by the learned Tribunal and hence, judgments and awards passed by the learned Tribunal is hereby confirmed. In view of the above, all the appeals and cross objection deserve to be dismissed.
Thus, all the appeals and Cross Objections are dismissed.
Office shall place a copy of this judgment in each matter.
Office is directed to send back the records and proceedings, if any, forthwith.
As this judgment and order has been passed looking to the peculiar facts and circumstances, this shall not be treated as precedent.
(M.D.SHAH, J.) RADHAN Page 9 of 9