Calcutta High Court
New India Assurance Co. Ltd. vs Naba Kumar Mondal And Anr. on 28 June, 2004
Equivalent citations: 2005(3)CHN524
Author: Maharaj Sinha
Bench: Maharaj Sinha
JUDGMENT
1. In spite of service of notice of this appeal upon the respondent No. 2, the owner of the vehicle, no one is appearing on behalf of him.
2. The short question, that arises for consideration, in this appeal, is whether, in view of the provisions of Section 149(2)(i)(a) of the Motor Vehicles Act, 1988 (hereinafter called as the said Act) where the offending vehicle was insured as a private vehicle with limited use by the insured for his personal, domestic, pleasure and own business purposes, the insurer could be made liable for payment of compensation for the death of a person who was travelling in the said vehicle upon payment of fare.
3. In this case the fact of the accident as occurred on 10.6.1999 was proved in evidence. The appellant-insurer before the Claims Tribunal took a specific plea that the offending vehiple was insured with the insurer for the use by the owner as his private car and not for carrying passengers on hire. In support of such plea, the appellant insurer had filed the certificate of" insurance which proved the fact that the offending vehicle was insured for being exclusively used for private purposes as above. Prom the said certificate of insurance, it also does not appear that the said offending vehicle was insured for covering the liabilities of any person who might or may be carried for hire or reward. At the trial it was extracted from the victim himself during his cross-examination by the appellant-insurer that he was travelling in the said vehicle on the fateful date upon payment of fare :--
"A Division Bench of Himachal Pradesh in the case of New India Assurance Co. Ltd. v. Anil Kr. and Ors., reported in 2001 (2) T.A.C. 35, has held as under: 'After analysing the factual and legal position for the purpose of deciding the present case, the vehicle is not covered by a permit to ply for hire or reward and it was a private vehicle not carrying any passenger for hire or reward. It is the owner of the vehicle herself who gave the vehicle/ allowed the vehicle to be used as taxi to carry passengers for hire or reward and, therefore, it cannot be said that she has not committed breach of condition of the policy which is the same as the one not permitted by the statutory provisions. The appellant-company has established that the breach was on the part of the insured and we find that it was the insured who was guilty of violating the terms or infringement of the contract by handing over a private vehicle for using it as taxi for hire or reward which is a fundamental breach of specified condition of the policy and the exclusion clause under Section 96(2)(b)(i)(a) shall expressly apply in the case in hand denying the respondent owner of the vehicle indemnification by the appellant company."
4. A Single Bench of Gujrat High Court in the case , National Insurance Co. Ltd. v. Premjibhai Manjibhai Vasava and Ors., by following the Full Bench decision of the said High Court reported in 1982 ACJ 153, National Insurance Co. Ltd. v. Nathibai Chaturabhuj, has held that the insurer in order to successfully disclaim his liability will have to establish; (1) 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 specific 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.
5. The Supreme Court again in the case reported in 2001(7) Supreme 257, T. V. Jose v. Chacko P.M. alias Thankachan and Ors., has held as under:--
"In this case only the first sheet of the policy is on record. This clearly shows that the policy is a third party policy. The terms and conditions governing this policy are not on record. What was shown to Court was terms and conditions of a comprehensive policy relating to private cars. These cannot apply to this policy. In the absence of terms and conditions governing this policy it is not possible to accept the submission of Mr. Lyer that this policy covered liability to occupants of the car. As has been set out hereinabove, the law on this subject is clear, a third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward. The 8th respondent company will, therefore, not be liable to reimburse the appellant."
6. Mr. Krishanu Banik, learned Advocate appearing on behalf of the claimant-respondents has referred to the three-Bench judgment of Kerala High Court , Oriental Insurance Co. Ltd. v. Ajayakumar. In the said judgment the question that arose for consideration was whether passengers in a private vehicle, carried not for hire or reward, would be covered by an insurance policy issued in terms of the provisions contained under Section 147 of the said Act. Upon consideration of such question it was held that the risk of a passenger travelling in a private vehicle gratuitously was covered by an Act policy and the insurance company was liable. This judgment does not have any application in the present case as the very question involved in this case as to whether a passenger carried in a private vehicle for hire or reward would be covered by an insurance policy which in particular stipulates the limitation as to the use of the same as above. The other decision cited by Mr. Banik is the decision of the Supreme Court reported in AIR 1988 SC 1433, Amrit Lal Sood and Anr. v. Kaushalya Devi Thapar and Ors. In the said case, the expression of 'any person as appearing in Section 95 of the Motor Vehicles Act, 1939 has been explained to include an occupant of a car who is gratuitously travelling in the same. The said decision does not have any manner of application in the case in hand.
7. It is not the case that the victim was travelling in the offending vehicle as a gratuitous passenger or as a simple occupant without payment of any fees or charges. Section 149(2)(i)(a)enables the insurer to defend, an action in a claim case, on the ground that there has been a breach of a specified condition of the policy, such as a condition excluding the use of the vehicle for carrying passenger for hire or reward as on the date of the contract of insurance. The vehicle was not issued with a permit to ply for hire or reward. The specific condition of the policy, as appearing from the certificate of insurance, is that the same was not permitted to be plied for hire or reward. At the same time, it was the evidence of the victim himself that he was travelling in the said offending vehicle upon payment of fees. In the face of the aforesaid evidence on record, it is clear that there was a clear breach of a specified condition of the insurance policy in respect of the offending vehicle.
8. In view of the above decisions as discussed above, we are also of the view that the appellant-Insurance Company cannot be made liable under the policy to indemnify the owner of the offending vehicle for payment of compensation as awarded by the Claims Tribunal to the claimant. We, therefore, set aside the judgment and award as passed by the Claims Tribunal and we specifically hold that the owner-respondent shall be liable for payment of the compensation as awarded by Claims Tribunal. With these observations, the appeal is allowed.
9. Since no question has been raised on the quantum of compensation as awarded by the Claims Tribunal, we direct the owner-respondent No. 2 to make payment of the awarded amount to the claimant-respondent within a period of four weeks form the date of communication of this order. In default, the claimant respondent shall be entitled to put the said award into execution in accordance with the provisions of law against the owner respondent No. 2. The appellant-Insurance Company shall thus be entitled to withdraw the statutory deposit as made by it at the time of filing of this appeal.
10. If urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously.