Himachal Pradesh High Court
Oriental Insurance Co. Ltd. vs Gian Chand And Ors. on 1 January, 2002
Equivalent citations: 2002ACJ764
Author: Arun Kumar Goel
Bench: Lokeshwar Singh Panta, Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. We propose to dispose of all these appeals by a common judgment (though claim petitions were decided separately by the learned Tribunal below), as these arose out of the same accident.
2. Learned counsel for the appellant insurance company, Mr. Ashwani Kumar Sharma has prayed for setting aside the impugned awards passed in all these cases. According to him, the vehicle in question involved was a truck bearing registration No. HIB 4355 meant primarily for carriage of goods. It was registered as such and was also adapted for carriage of goods and not of passengers.
3. After the matter was heard, learned Counsel for the parties were not at variance on the following facts:
4. That the truck bearing registration No. HIB 4355 belonged to Mansa Devi respondent. Rattan Chand was its driver at the time of its accident. And he is the son of Mansa Devi, owner. On the fateful day, i.e., 8.5.1997, when it met with the accident, it was deployed to carry barat from village Baroha to Bihar in Hamirpur District. As a result of the accident there were number of casualties and those who survived sustained injuries grievous as well as simple. According to respondents/claimants this accident was the result of rash and negligent driving on the part of Rattan Chand driver. Insurance of the truck with appellant is also admitted.
5. Mr. Ashwani Kumar Sharma pleaded breach of conditions of policy, route permit and persons deceased, as well as survived travelling as unauthorised passengers in the truck in question on the fateful day, as such his client is not responsible for payment of any compensation except in case of cleaner, i.e., F.A.O. No. 363 of 2000.
6. With a view to support his submission, he referred to appendix (G) (Sic.) of the Motor Vehicles Act, 1988 and entry in it under the heading 'goods carriage', wherein 'truck' is shown as one of such vehicles. Definition of goods carriage as per Section 2(14) of the Motor Vehicles Act, 1988, was also referred to by him. Another argument based on Punjab Motor Vehicles Rules 1940 applicable in the instant case was also urged by Mr. Sharma. According to him even in case of a truck the respondent owner of the vehicle could obtain a permit for carriage of passengers. There is no evidence on record in this behalf, as such, this plea was pressed into service as an additional ground for allowing of these appeals. Section 149 (2)(a)(i)(a) and (c) of the Motor Vehicles Act, 1988 was also referred to show that this is a clear cut case of breach on the part of the owner, both of the provisions of Motor Vehicles Act as well as of contract of insurance subject to which risk was covered by the appellant.
7. All these pleas have been controverted by the learned Counsel appearing for the respondents-claimants. According to them, keeping in view the date of accident as well as provisions of Motor Vehicles Act, 1988 after amendment of 1994, liability of the appellant insurance company is absolute. It was also pointed out by learned Counsel for the claimants that there is no legal evidence which can be said to have been produced and or can be relied on behalf of the appellant insurance company for being read in evidence.
8. During the course of proceedings before the learned court below, insurance company merely tendered copy of insurance policy as Exh. RA, Exh. RB the goods carrier permit, Exh. RC being summary to be carried on the vehicles, Part D and Exh. RD being a certificate of registration of the truck in question. We may note that Exhs. RB to RC are photocopies.
9. In case the appellant wanted to disclaim its liability something more than mere tendering into evidence Exh. RA to RD was required to be done in law.
10. A Full Bench of Gujarat High Court in National Insurance Co. Ltd. v. Nathibai Chaturabhuj 1982 ACJ 153 (Gujarat), speaking through P.D. Desai, J. (as his Lordship then was), held as under:
(28) In the light of the foregoing discussion, we answer the question referred to us as follows:
The liability in respect of the death of or bodily injury to a passenger carried for hire or reward on the insured vehicle when the accident giving rise to the claim occurred, including the liability in respect of the owner or hirer of the insured vehicle or his bona fide employees within the permissible limit, will be covered by the statutory insurance either by virtue of Section 95(1)(b)(i) read with the second clause of the proviso or by reason of Section 95(1)(b)(ii) of the Act. In such a case the insurer will have to pay to the person entitled to the benefit of the award the sum assured, which shall not be less than the sum specified in Section 95 (2), subject, however, to the right of the insurer to disclaim the liability, inter alia, under Section 96(2)(b)(i)(a). The insurer, in order to successfully disclaim his liability on that ground, will have to establish:
(1) that on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward.
(2) that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward, and (3) that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward.
If all these facts are established by the insurer, the benefit of statutory insurance will not be available in respect of such passenger. In other words, the claimant in such a case, be he the passenger himself or his dependant, will not be able to recover from the insurer the amount, if any, awarded in his favour to the extent specified in Section 95(2) and the insurer will not be liable to satisfy such award.
11. Similarly, where insurance company takes up specific stand with a view to get itself exonerated by any law (as in the present case), it was required to have proved/established by leading cogent evidence to support such claim. In the absence of such proof, what was held by the Apex Court in Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), has material bearing on this case and is extracted as under:
(15) To sum up the insurance company failed to prove that there was a breach of the terms of the contract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance.
12. In this behalf we may also notice that documents Exhs. RA to RD were tendered in evidence without any objection on behalf of the claimants. What is its effect?
13. Mr. Ashwani Kumar Sharma, learned Counsel appearing for the appellant by referring to a decision in P.C. Purusho-thama Reddiar v. S. Perumal AIR 1972 SC 608, submitted that since no objection was raised regarding admissibility of these documents, therefore, those shall be taken to have been duly proved in accordance with law and can be read in evidence.
14. It was on this basis that he pressed into service conditions of policy so far those related to limitation of use of vehicle whereunder, the insured vehicle could only be used for carriage of goods within the meaning of Motor Vehicles Act and the policy not covering use of vehicle for carrying passenger in it except employees (other than driver) not exceeding six in number coming under the purview of Workmen's Compensation Act, 1923. Similarly, with reference to Exh. RB to Exh. RD he submitted that the vehicle in question could only be plied on all motorable roads in Himachal Pradesh for carriage of goods.
15. In the case of P.C. Purushothama Reddiar v. S. Perumal AIR 1972 SC 608, it was held as under:
(18) Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier and inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility. [See Bhagat Ram v. Khetu Ram AIR 1929 PC 110].
16. In this behalf reference can be made to the observation of the Supreme Court in Chimajirao Kanhojirao Shirke v. Oriental Fire & Genl. Ins. Co. Ltd. 2001 ACJ 8 (SC):
(9)...Once a stand in fact is taken, that fact cannot be controverted by any legal proposition. In the present case, the insurance company has not led any evidence to dissolve the stand taken in the written statement that it was done by mistake nor was there any application to amend such pleadings....
17. In Sait Tarajee Khimchand v. Yelamarti Satyam AIR 1971 SC 1865, it was observed that mere marking of a document as an exhibit does not dispense with its proof.
18. To similar effect are the observations of Apex Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import AIR 1981 SC 2085.
19. In this behalf what was observed by Apex Court and is relevant for considering whether Exh. RA to Exh. RD stood proved in accordance with law or not as held in Ramji Dayawala & Sons (P) Ltd. v. Invest Import AIR 1981 SC 2085, was in para 16 as under:
(16) ...Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e., by the evidence of those persons who can vouchsafe for the truth of the facts in issue. But in this case Bhikhubhai Gouri-shankar Joshi who filed an affidavit on behalf of the appellant has referred to the averments in the letter and the cable. He is a principal officer and constituted attorney of the appellant company. Once the receipt of the letter and the cable are admitted or proved coupled with the fact that even after the dispute arose and before the suit was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or covert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and the cable controverting the averments made therein would unmistakably establish the truth of the averments made in the letter. What is the effect of averments is a different question altogether but the averments contained in the letter and the cable are satisfactorily proved.
20. Thus it was incumbent upon the appellant to have proved these documents, Exhs. RA to RD in accordance with law. We may point out that admissibility is one thing and mode of proof is another.
21. Appellant has led no evidence to prove these documents by examining officials of the insurance company as well as the transport authority and also the registration and licensing authority concerned. This was the least that was expected by the appellant in order to substantiate its claim that no liability can be fixed on it in view of the above mentioned facts. There is no evidence to that effect. To be fair to Mr. Ashwani Kumar Sharma, we may point out that he referred to a recent decision of this Court and urged that since Exh. RA to Exh. RD were not objected to, therefore, those need to be looked into. For the view that we have taken is on the basis of cases in Sait Tarajee Khimchand v. Yelamarti Satyam AIR 1971 SC 1865; Ramji Dayawala & Sons (P) Ltd. v. Invest Import AIR 1981 SC 2085 and Chimajirao Kanhojirao Shirke v. Oriental Fire & Genl. Ins. Co. Ltd. 2001 ACJ 8 (SC), we are not referring to the said decision.
22. So far plea that there was breach of provisions of Section 149(2)(a)(i)(a) and (c) is concerned, this plea must fail in view of recent decision of the Supreme Court to which reference will be made hereinafter, as well as in view of the amendment of 1994 making liability of the insurance company absolute.
23. What is meant by the word 'breach', reliance was placed by learned Counsel for the appellant on a decision of the Supreme Court in Sohan Lal Passi v. P. Sesh Reddy 1996 ACJ 1044 (SC). In this case while considering the provisions of Section 96(2) of the Motor Vehicles Act, 1939 in this judgment it was observed that insurer is required to establish wilful violation or infringement of a promise by the insured. Owner of the insured bus had authorized his duly licensed driver to drive the vehicle, but this driver allowed cleaner/conductor of the bus to drive when accident took place. Apex Court held that defence of breach of condition was not available to the insurer (like appellant in the present case) and thus held it liable. Therefore, this decision in no manner advances the case of the appellant.
24. Reliance was placed on behalf of the appellant on the decision in case of New India Assurance Co. Ltd. v. Kamla 2001 ACJ 843 (SC). In this case question involved was that when a fake licence happened to be renewed by a statutory authority, would it rectify the original fakement of such driving licence. If the answer was in the negative would the insurance company be liable to pay compensation in respect of motor accident taking place when the vehicle was being driven by a person holding a fake licence. In this context, the Supreme Court allowed the appeal of the insurance company and observed as under:
(25) The position can be summed up thus: The insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence. Learned counsel for the insured contended that it is enough if he establishes that he made all due enquiries and believed bona fide that the driver employed by him had a valid driving licence, in which case there was no breach of the policy condition. As we have not decided on that contention it is open to the insured to raise it before the Claims Tribunal. In the present case, if the insurance company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimants-third parties) from the insured person.
25. We may observe that so far as this decision is concerned, it does not in any manner improve the case of the appellant. Firstly, for want of proof of documents and secondly this decision cannot be read out of context. Terms of policy as well as proof of documents as in the present case was neither the question involved nor was gone into by the Apex Court. Therefore, no advantage can be derived from this decision of the Supreme Court.
26. Again by referring to a decision of the Supreme Court in New India Assurance Co. Ltd. v. Satpal Singh 2000 ACJ 1 (SC), Mr. Sharma submitted that trial court has placed reliance on this decision and it stands referred to a larger Bench. Therefore, he prayed not to decide these appeals, till the larger Bench decides about the correctness of decision in this case. Ordinarily, this plea should have found favour with the court. But for the reasons to be recorded hereinafter, this submission is hereby rejected.
27. In Ramesh Kumar v. National Insurance Co. Ltd. 2001 ACJ 1565 (SC), number of connected appeals were taken up for consideration by the Apex Court. Those were put in three categories. First category of cases were those which arose out of the Motor Vehicles Act, 1939. In these cases following question was raised:
Whether insurance company is liable to pay the compensation on account of the death or bodily injury of the gratuitous passengers including owner of the goods or his representative travelling in a goods vehicle under Section 95 of the said Act?
Second category of cases were those which had arisen under Motor Vehicles Act, 1988 but prior to its amendment in the year 1994. Third category of cases were which also arose under the Motor Vehicles Act, 1988, but after its amendment in the year 1994.
In all these three categories question raised was regarding liability of insurance company as extracted hereinabove.
Regarding first category of cases by referring to its earlier decision in .the case of Mallawwa v. Oriental Insurance Co. Ltd. 1999 ACJ 1 (SC), it was held that insurance company is not liable and owners of the goods vehicle were held liable for payment of compensation.
Regarding third category of cases insurance company was held liable. So far as the present appeals are concerned, they have admittedly arisen out of an accident which took place after the amendment in 1994. As such what was held in this case by Supreme Court was as under:
(7) This takes us to the third category of cases where similar question is raised regarding liability of the insurance company under the new Act after its 1994 amendment. The submission for the claimant is, the insurance company is liable to pay the compensation both in view of the decision of this Court in New India Assurance Co. Ltd. v. Satpal Singh 2000 ACJ 1 (SC) and also in view of its 1994 amendment. This court in this case, while interpreting Section 147(1)(b)(i) and (ii) of the new Act holds the insurance company liable to pay the compensation both for the owner and his representative and also for the gratuitous passengers travelling in a goods vehicle. In this third category, in spite of the said declaration the claimants have confined their claim only for the owner or his representative who were travelling in a goods vehicle and not for the gratuitous passenger. Since Satpal Singh (supra) confers right over gratuitous passengers also, which is not claimed by any of the claimants under this category, thus declaration of law in Satpal Singh (supra) is not required to be considered for this category, as claim for the owner and his representative is not disputed even by the learned Counsel for the insurance company after its aforesaid 1994 amendment, that insurance company is liable to pay compensation for such person even when they were travelling in a goods vehicles. This is in view of 1994 amendment in Sub-clause (1) of Section 147(1)(b) of the new Act in which the following words were brought in:
...Injury to any person, including the owner of the goods or his authorized representative carried in a vehicle.
(8) Thus this category of cases are also disposed of by declaring that compensation awarded in such cases where deceased or injured persons were travelling in a goods carriage who were owner or his authorized representative, the insurance company is liable to pay the compensation. Any compensation or part of it not paid shall be paid to the claimant by the insurance company within eight weeks of this order. Any such amount withdrawn by the claimant which was deposited by the insurance company on furnishing security, such security stands discharged.
28. In case this decision had not come from the Hon'ble Apex Court, even then we may not have waited for the decision by a larger Bench of Apex Court regarding correctness of its earlier view in case of New India Assurance Co. Ltd. v. Satpal Singh 2000 ACJ 1 (SC). We may also note that in New India Assurance Co. Ltd. v. Asha Rani 2001 ACJ 1847 (SC), the matter was referred to a larger Bench. Another reason for deciding these cases is that the decision in New India Assurance Co. Ltd. v. Satpal Singh (supra), was rendered on 2.12.1999 whereas decisions in the cases of Ramesh Kumar v. National Insurance Co. Ltd. 2001 ACJ 1565 (SC) and New India Assurance Co. Ltd. v. Asha Rani (supra) are of 17.8.2001. Since the case of Ramesh Kumar (supra) squarely covers the present case, therefore, in our opinion the plea urged by insurance company to the contrary cannot be accepted.
29. Mr. Ashwani Kumar Sharma, learned Counsel for the appellant invited our attention to the case of Pushpabai Pur-shottam Udeshi v. Ranjit Ginning & Pressing Co. 1977 ACJ 343 (SC), with a view to show that his client was not liable for any amount as awarded in these cases. This plea also cannot be accepted in view of the decision in the case of Ramesh Kumar v. National Insurance Co. Ltd., 2001 ACJ 1565 (SC). Again by placing reliance on a Full Bench decision in National Insurance Co. Ltd. v. Dundamma 1992 ACJ 1 (Kar-nataka), Mr. Sharma learned Counsel urged that his client is not liable for payment of any compensation regarding death of or bodily injury to the persons carried in a goods vehicle as in the present case. Again this decision does not improve the case of the appellant in view of what has been observed hereinabove.
30. So far F.A.O. (MVA) No. 171 of 2000 is concerned, it is filed by the parents of a student who was studying in 7th class and was aged 13 years, Tribunal below has awarded compensation in the sum of Rs. 70,000 with interest. Looking to the nature of evidence and on an overall examination of the materials on record of the learned Tribunal below, in this case we feel that compensation awarded is just and reasonable, as such it calls for no alteration. Accordingly, the appeal being devoid of any merit is hereby dismissed.
31. So far F.A.O. (MVA) No. 363 of 2000 is concerned, admittedly it has been filed for compensation regarding death of Kamaljit, who had been proved to be employed as a cleaner on the truck in question at the time of its accident. Respondents-claimants in this case had no option to have petitioned either to the Commissioner under the Workmen's Compensation Act or to have approached the learned Tribunal below for grant of compensation. In case of latter claimants are required to prove rash and negligent driving, whereas in case of former only two things are required to be established. Factum of accident and its having taken place during the course of employment of the workman concerned. It was fairly stated by Mr. Ashwani Kumar Sharma, learned Counsel on behalf of the appellant that compensation awarded in this case is the liability of the appellant insurance company. In view of this stand on behalf of the appellant insurance company as well as keeping in view the provisions of the Motor Vehicles Act, this appeal also merits dismissal.
32. No other point is urged.
33. In view of the aforesaid discussion all these appeals are hereby dismissed leaving the parties to bear their own costs.
34. Registry is directed to place an authenticated copy of this judgment on the files of all connected appeals.