Orissa High Court
Oriental Fire And General Insurance Co. ... vs Raghunath Muduli And Ors. on 10 December, 1990
Equivalent citations: II(1992)ACC653, 1992ACJ117, AIR1991ORI173, AIR 1991 ORISSA 173, (1992) 2 TAC 579, (1992) 2 ACC 653, (1992) 1 ACJ 117
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. An interesting question of law that arises for consideration in this appeal is whether the road inside the Orissa Secretariat at New Capital, Bhubaneswar can be said to be 'public place' so as to fasten the liability on the insurer of the vehicle under Section 95(1)(b)(i) of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act').
2. The insurer is the appellant who was opposite party No. 3 before the Tribunal. Respondent No. 1 was the claimant in an application filed under Section 110-A of the Act. It was alleged in the claim petition that on 26-2-1983 at 3.30 p.m. while the claimant was going to his office in the Secretariat and was walking on his left side of the road, the vehicle -- a Jeep bearing registration No. ORJ 4715 came from behind with great speed being driven rashly and negligently and dashed him from the back in consequent of which he became unconscious and sustained several injuries. The right leg of the claimant had been fractured and in spite of prolonged treatment, the fractured bones did not unite for which he suffered permanent disablement of his right leg. He made a claim of Rs. 87,000/-. The owner of the vehicle took the stand in the written statement that there was no negligence and rashness on the part of the driver and the vehicle was being driven cautiously by giving continuous horn but the injured was moving on the middle of the road and did not move to the side. When the jeep approached near him blowing continuous horn, the injured suddenly became conscious and dumb founded and fell down on the jeep on account of which he sustained minor injuries. According to the respondent No. 2 the injuries on the claimant were due to his own negligence and therefore, no amount of compensation can be awarded. It was also pleaded that even if compensation is payable, it is the insurer of the vehicle who is liable to pay. The Insurance Company who is the appellant in the present appeal also filed a written statement denying the allegations made in the claim petition and further required the insured to file the original policy along with the road permit, fitness certificate and the driving licence of the driver etc.
3. On these pleadings, the Tribunal framed four issues, He came to the conclusion that the driver of the vehicle did not take sufficient care and caution to take his vehicle to the road side leaving sufficient space between him and the claimant to avoid any possible accident and that he was overtaking the claimant closely by his side when the leftside bumper of the jeep hit the claimant and thus the driver caused the accident by rash and negligent driving. On the question of quantum of compensation, the Tribunal came to the conclusion that due compensation would be Rs. 45,000/- and accordingly, he awarded the same. It is this award which is being challenged in this appeal.
4. Mr. S. S. Basu, learned counsel for the appellant, raised the only contention that the accident having taken place inside the Secretariat compound, and the said place not being a public place, the Insurance Company will not be liable to pay the compensation. The learned counsel for the respondents, on the other hand, contended that such a plea had not been taken in the written statement and therefore, the question being not a pure question of law, the same cannot be permitted to be urged in this appeal. He further contended that the Secretariat compound will be a public place as public have right of access subject to permission being granted. Lastly he contended that the accident took place before the Secretariat gate and therefore, there cannot be any manner of doubt that the road in front of the gate is a public place. The rival contentions require careful examination.
5. At the outset, it is conceded by the learned counsel for the appellant that the Insurance Company had not taken the stand in the written statement. But according to Mr. Basu the point is available to be urged on the findings of the Tribunal. To appreciate the contention raised, it is necessary to notice the provisions of Section 95(1)(b)(i) of the Act, which is extracted hereinbelow in extenso :
"95. Requirements of policies and limits of liability--
(i) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -
(a) xx xx xx
(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;
XX XX XX"
It is, therefore, crystal clear that the insurer's liability will arise only if a bodily injury to any person or damage to any property of a third party Is caused by or arising out of the use of the vehicle in a public place. The expression 'public place' has been defined in Section 2(24) of the Act, to mean, a road, street, way or other place whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage. The important phrase occurring in the definition of 'public place' in Section 2(24) of the Act is "to which the public have a right of access". Mr. Basu for the appellant relied upon the following authorities in support of his contention that the road inside the Secretariat compound will not be a public place: 1970 Acc CJ 44 (Madras), Rajammal v. Associated Transport Co., 1975 Ace CJ 226 : (AIR 1976 Orissa 21); Life Insurance Corporation of India v. Karthyani, 1982 Acc CJ 202 : (AIR 1981 Gujarat 200) Oriental Fire and General Insurance Co. Ltd. v. Rebari Gandu Punja, 1982 Ace CJ (Supp.) 203 : (AIR 1982 Madras 223); Mangalam v. Express Newspapers Ltd., AIR 1983 Kerala 69 Taxi Drivers' Union v. Kerala State Road Transport Corporation, 1989 Acc CJ 95 (Madras) Chairman, Neyveli Lignite Corporation v. Nayathan and 1989 Ace CJ 647 (Madras) Kannammal v. A. S. Kasim.
6 In Rajammal's case 1970 Acc CJ 44 (Madras) an accident took place inside the compound of Huzur Gardens, in a portion of which the company Shardlow India Ltd. is situated and the question arose was whether the place where the accident occurred was a public place within the meaning of Section 2(24) of the Act. After analysing the evidence adduced in the case, the learned Judge came to hold that Huzur Gardens is a private property and lorries would have to get permission before it could enter and it would, therefore, be reasonable to infer from the evidence that the members of the public have no right as such to enter the premises. In Life Insurance Corporation of India's case 1975 Acc CJ 226 : (AIR 1976 Orissa 21) the learned single judge of this Court had the occasion to consider the question as to whether the premises of Hindustan Steel Factory would be a public place so as to make the insurer liable for the accident that took place. The learned Judge analysing the dictionary meaning of the word 'access' and the definition of 'public place' in Section 2(24) of the Act came to the conclusion that the place 'to which public have a right of access' would mean, the place where members of the public have admission as of right, that is, where they can go without any hindrance or without being required to take any permission from anybody, and if the members of the public do not, as of right have access to a particular place, that place cannot be said to be a public place. Thereafter, the learned Judge taking judicial notice of the fact that the factory premises of the Hindustan Steel limited at Rourkela which is not allowed to the members of the public to go in unless there is permission from the authority concerned, came to hold that the premises aforesaid cannot be held to be a public place and therefore, the insurer will not be liable. It is to be noticed that in that case, the insurer in paragraph 7 of the written statement had taken specifically the stand that the alleged accident having taken place inside the private premises, the claim of the applicants is not covered by the policy of the insurance issued by the opposite party and on the basis of the evidence in the case, the learned Judge came to the conclusion that the accident took place inside the factory premises of Hindustan Steel Limited. In Oriental Fire and General Insurance Co. Ltd.'s case 1982 Ace CJ 202 ; (AIR 1981 Gujarat 200) a similar question arose before a learned single Judge of Gujaral High Court and the accident in that case had taken place inside the compound of a factory where there is no right of access to the public.
Following the Madras view in Rajammal's case (1970 Acc CJ 44) and Orissa view in the Hindustan Steel's case, the learned Judge held that since the accident took place within the compound of the factory of Western India Tiles Company to which members of the public cannot go as of right, it must be held that the accident did not take place in a public place and therefore, the insurer will not be liable. In Mangalam's case 1982 Acc CJ (Supp.) 203 : (AIR 1982 Madras 223), similar question arose before a Division Bench of Madras High Court where the accident took place inside a compound of Express Newspapers Estate. The learned Judges observed that it is for the Court to find out whether the place is a public place or a private place and whether any member of the public would have access as of right to that place. In view of the evidence in the case to the effect that the Indian Express Estate is surrounded by a compound and there is a gate through which the entry is regulated by permission, the learned Judges held that the accident occurred in a private place and not in a public place. In Taxi Drivers' Union's case AIR 1983 Kerala 69, a learned single Judge of Kerala High Court considered the same question. In that case the accident took place on the link road which joins the National Highway and the building of the Naval Air Station belonging to the Defence Department of Government of India and the Civil Aviation Department has been permitted to use the land and the facilities and the Indian Airlines also was using the Aerodrome for commercial flights; but the link road is a pan of the land belonging to the Defence Department and not a part of the Aerodrome. In this view of the matter, the learned Judge came to the conclusion that the members of the public have no right of access as such and therefore, the place was not a public place. In Neyveli Lignite Corporation's case 1989 Acc CJ 95 (Madras) the place at which the accident took place was owned by a commercial corporation and a prohibited area where general public do not have a right of access and entry is restricted by permits. The learned single Judge came to the conclusion that the place cannot be and to be a public place. In Kannammal's case 1989 Ace CJ 647 (Madras) the same question arose before a learned single Judge of Madras High Court where the accident took place in the precincts of a petrol service station. It was held by the learned Judge that it would not be a public place so as to attract the provisions of Section 95( l)(b)(i) of the Motor Vehicles Act.
7. It is to be noticed in all the aforesaid cases the insurer had taken the positive stand that the place where the accident occurred is not a public place and the evidence had been led and ultimately determination had been made by the Court. In the present case, unfortunately the insurer had not taken the stand in his written statement. Be that as it may, in all the aforesaid decisions, the learned Judges of different High Courts have given much emphasis on the question whether the public have access to the place as of right. From that standpoint even though to a place the public have access but under certain conditions, like permission or pass, the learned Judges have held the place to be a private place and not a public place. In my considered opinion, that is not the correct approach and that would not be the correct interpretation of the expression 'to which the public have a right of access' in the definition clause of 'public place' in Section 2(24) of the Act.
8. In Stroud's Judicial Dictionary, the meaning of the words 'public access to a place' has been given to be a place open to all the public whether by right or permission. According to K. J. Aiyer's Judicial Dictionary, the test of a public place is whether it is open to the members of the public or not even though there may be certain conditions attached to the entry or the use thereof. What is required is that such a place must be open for entry by an indeterminate number of members of the public or a determinate number. In Law Lexicon and Legal Maxims by Venkataramaiya, the meaning that has been given to the expression 'public place' is a place 'open to all the public in fact, whether by right or permission' and does not necessarily connote that this must be as of right. In the case of R. v. Kane (1965) 1 All ER 705, it was held that a public place cannot be confined to a street or highway but that it means to a place to which public have access. The learned Judge held that in common law, a public place is a place to which the public could and did have access, and it was immaterial whether they came to that place at the invitation of the occupier or with his permission, or whether some payment or the performance of some formality, such as the signing of a visitors' book, was required before access could be allowed to them. In the case of Lanka Sarmma v. Rajendra Singh, AIR 1984 Andh Pra 32, a question arose whether a dam site which was the place of accident and belonged to the Public Works Department and where the coolies were hired for loading and unloading stones was a 'public place'. The learned Judge held in the affirmative and observed that it would not be a correct interpretation of Section 95 to hold that third party compulsory insurance need not cover an ancident that occurred on a factory premises. In the case of Narsingh v. Balkishan (1987) 1 TAG 364, the learned single Judge of the Madhya Pradesh High Court considered the definition of 'public place' in Section 2(34) of the Act and observed that the expression should be given a wide import and interpretation and further held that even user of a private place and access of public to it can be interpreted as a 'public place' within the meaning of Section 2(24) and that it was not necessary that the place in question was a public property. This question has been considered in a recent Full Bench decision of the Bombay High Court in the case of Pandurang Chimaji Agale v. New India Life Insurance Company Ltd., AIR 1988 Bombay 248 (FB). It has been held in the aforesaid case that the definition of 'public place' under the Act is, therefore, wide enough to include any place which the members of public use and to which they have a right of access. The right of access may be permissive, limited, restricted or regulated by oral or written permission by tickets, passes and badges or on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that the place must be accessible to the members of the public and be available for their use, enjoyment, avocation and other purpose. The learned Judges have further observed that the expression 'a right of access' is not the same thing as 'access as of right' and in the decisions referred to earlier the different High Courts have taken the view laying emphasis on the question whether public have access as of right.
9. After discussing the several authorities and disagreeing with the views expressed by the Madras High Court, Allahabad High Court, Orissa High Court and Kerala High Court referred to earlier in this judgment, the learned Judges held that for the purpose of Chapter VIII of the Act, the expression 'public place' will cover all places including those of private ownership where members of public have an access whether free or controlled in any manner whatsoever.
10. Bearing in mind the fact that the provisions of Section 5 of the Act are beneficial provisions for making the insurer liable to pay compensation in a case where death or bodily injury to any person or damage to any property of a third party is caused by or arising out of the use of the vehicle in a public place, there cannot be any manner of doubt that the expression 'public place' should be given a wide interpretation. In this view of the matter, the road inside the Orissa Secretariat compound must be held to be a public place and if any death or injury occurs inside that compound on account of any use of vehicle, then the insurer must be held to be liable to pay the compensation. Disagreeing with the narrow interpretation given by the learned single Judge of this Court in Hindustan Steel case referred to earlier 1975 Acc CJ 227: (AIR 1976 Orissa 21) (supra) and following the Full Bench decision of the Bombay High Court in AIR 1988 Bom 248 (supra), I would hold that the road inside the Secretariat compound is also a public place within the meaning of Section 2(24) of the Act and attracts the provision of Section 95(1)(b)(i) of the said Act, inasmuch as the members of the public have a right of access to the Secretariat though a permission or pass is required for such entry. Mr. Basu's contention must, therefore, be rejected.
11. On point of fact however the question that arises for consideration is where actually the accident occurred. The tribunal no doubt has recorded a finding that the accident took place in the premises of the Secretariat building where the driver of the jeep was supposed to have driven at a very low speed. The only basis for the aforesaid finding is the evidence of opposite party witness No. I who is the driver of the offending vehicle. P. Ws. 1 and 2 have categorically stated that the accident took place before they reached the Secretariat gate. P. W. 1 stated in his evidence that while he was approaching the gate of the Secretariat, a jeep came being driven in a high speed and dashed him from behind on the left side of the road. His evidence has not been shaken in any manner in the cross-examination. P. W. 2 also stated that while P.W. 1 was returning to the Secretariat, he was following him and before the approach gate, a jeep came from the northern direction and wanted to turn towards the gate of the Secretariat and his the petitioner (respondent No. 1) from the back. In the cross-examination it has been elicited that the petitioner was walking on the left side of the approach road near the gate. In view of the evidence of P.Ws. 1 and 2 as discussed above, 1 have no hesitation to: conclude that the accident occurred outside the Secretariat gate on the approach road to the Secretariat from the main road and that road by no stretch of imagination can be held to be a private place. On the other hand, it must be held to be a public place. The conclusion of the learned Tribunal that the accident occurred inside the Secretariat compound is contrary to the evidence on record and cannot be sustained. On a question of fact, therefore, the necessary conclusion would be that the accident occurred in a public place so as to attract the liability of the insurer under Section 95(1)(b)(i) of the Motor Vehicles Act.
12. In the premises as aforesaid, the appeal has no merits and is accordingly dismissed with costs. Hearing fee is assessed at Rs.200/-.