Gujarat High Court
United India Insurance Co. Ltd. vs Gujarat Ship Trading Corporation on 30 June, 1997
Equivalent citations: 1998ACJ1003, (1997)3GLR736, 1997 A I H C 4162, (1997) 3 GUJ LR 2560, (1997) 2 GUJ LH 836, (1998) 1 TAC 538, (1998) 2 ACJ 1003, (1998) 2 CIVLJ 466
JUDGMENT J.N. Bhatt, J.
1. By this appeal the appellant, original opponent No. 3 United India Insurance Co. Ltd., has questioned legality and validity of the judgment and award dated 24.12.1996 delivered in Motor Accident Claim Petition No. 336 of 1992 by the Motor Accidents Claims Tribunal (Main), Bhavnagar.
2. The main question which has come up before us for consideration and adjudication in this appeal is "whether the vehicular accident in question could be said to have occurred in a 'public place' as defined under Section 2(34) of the Motor Vehicles Act, 1988 (new Act)?"
3. In order to examine and appreciate the main question, we would like to highlight skeleton projection of the facts. The respondent No. 1 Gujarat Ship Trading Corporation which is the original claimant 'Corporation' by filing the aforesaid claim petition claimed Rs. 2,58,000/- under Section 166 of the new Act, and, inter alia, contended that the goods belonging to it came to be damaged on account of rash and negligent use of a public carrier No. GTS 7023 driven by the respondent No. 2, original opponent No. 1, belonging to the respondent No. 3, original opponent No. 2.
4. In short, the appellant is the insurer. The respondent No. 1 is the claimant, the respondent No. 2 is the driver and the respondent No. 3 is insured in respect of the public carrier No. GTS 7023 which was involved in the accident and therefore, for the sake of convenience and brevity they are hereinafter referred as such as arraigned in the main petition.
5. The claimant Corporation is the registered partnership firm and has three partners and the partnership firm is doing ship breaking business and occupies plot No. 12, Alang Ship Yard. The damage caused to the goods are claimed by the claimant on the premise that the public carrier which was involved in the accident was loaded with the iron plates for being transported to Bhavnagar and after loading work was over the public carrier went out for weighment of the goods. The public carrier was going for that purpose. At that time, the driver, original opponent No. 1 was in charge of the said carrier and accident took place.
6. It was, inter alia, contended that the public carrier driven by the original opponent No. 1, driver, all of a sudden started into reverse. As a result of which, the driver all of a sudden applied brakes which resulted into breaking of gear joint and gear pipe and thereafter it went into the plot No. 12 occupied by the claimant, as a result of which, the goods like engine turbo, panel board, air conditioners split unit, radio unit, fire unit, etc., came under the wheel and got damaged. The claimant got damage to the goods assessed and surveyed through a recognised Government surveyor. Said survey disclosed damage to a tune of Rs. 2,85,000/- to the goods after deducting salvage value of Rs. 26,500/-. The claimant Corporation claimed the said damages from the insurance company of the truck. The claim was not granted or paid as a result of which the claim petition invoking Section 166 of the new Act came to be filed before the Tribunal concerned.
7. The Tribunal after considering the facts and circumstances, reached to a conclusion that the goods belonging to the claimant Corporation were damaged on account of rash and negligent driving and use of public carrier in a 'public place' insured with the appellant herein, original opponent No. 3. With the result, the Tribunal granted an amount of Rs. 2,58,500 by way of compensation for the damages to the goods sustained by the claimant Corporation with interest at the rate of 15 per cent per annum from the date of the application till realisation by passing its award and judgment on 24.12.1996 which is directly under challenge in this appeal before us.
8. The main question as we stated hereinabove was as to whether the appellant insurer, the original opponent No. 3, could be fastened with the liability for the payment of compensation or not? In this context, reliance is placed on definitional clause of the 'public place' and the facts of the case. It is, therefore, submitted that plot No. 12 belonging to the original claimant was not a public place and the goods sustained damage which were lying admittedly in plot No. 12. The main contention which is raised before us, thus, is that since occurrence of the accident and use of the vehicle is not in the 'public place' the appellant insurer is not liable to reimburse the amount of compensation to the claimant. Thus, the aforesaid contention is seriously controverted.
9. Prima facie, the aforesaid contention may appear to be captivating but not sustainable in view of the special facts and peculiar circumstances under which the accident occurred. There is no doubt about the fact that the public carrier involved in the accident had come from Bhavnagar to Ship Breaking Yard in plot No. 12 for the purpose of loading the goods. The facts are apparent and implicit which may be highlighted at this stage :
(i) After loading the goods into public carrier from plot No. 12 it came out of the plot.
(ii) It was going towards weighing bridge for weighment of the goods.
(iii) After coming out of the plot gate the public carrier entered into the main road and at that time the driver of the public carrier applied the brakes for the exact reasons which are not placed on record.
(iv) As a result of which the truck gear box, brake pipe, gear joint, etc., had been broken, and
(v) As a result of which the public carrier again entered into plot area of the claimant Corporation and damaged goods.
10. The aforesaid circumstances and aspects have emerged from the evidence of one of the partners of the claimant Corporation, Mansukhlal, Exh. 20 which have remained uncontroverted. The original driver and the insured have not filed their written statements and they have not entered into witness-box. Original opponent No. 3, appellant herein, United India Insurance Co. Ltd., has raised the dispute, inter alia, that the accident in question has not occurred in the 'public place' which is one of the requirements for holding the insurer liable. It was also alternatively contended that the amount of compensation claimed by the claimant Corporation is not correct and valid.
11. After having put into the scale the rival versions the Tribunal has reached to a conclusion that in the light of peculiar facts and circumstances the accident had occurred in the 'public place' as required. The Tribunal also found that the claimant Corporation is entitled to the amount of Rs. 2,58,500/- by way of compensation, as claimed.
12. It would be interesting to consider as to whether in the light of the special circumstances obtainable from the evidence on record could the accident be said to have occurred in a 'public place' or not. Before factual scenario put again into focus it would be advisable to refer the statutory provisions of Section 2(34) of the new Act which prescribes and provides as to what is a 'public place'. Its corresponding section of old Act is Section 2(24), which reads as under :
'Public place' means a road, street, way or other place, whether a thorough-fare 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.
13. It would be very well seen from the aforesaid provisions that even user of the private place where public have access is also included in the definition of the 'public place'. It, therefore, need not necessarily be a public property. Even in case of private place where public have access without restrictions or even limited with pass, etc., it could be characterised as a public place in view of the clear definition supplied in Section 2(34) of the new Act.
14. It would be interesting and expedient to refer to the provisions of Section 147 of the new Act which prescribes the requirements of policies and the limits of liability. The relevant provision is incorporated in Section 147(1)(b)(i). The expression supplied which is relevant for the purpose may be examined:
...damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.
Similarly, in Section 147(1)(b)(ii) the same expression is supplied.
15. It would be very well visualised from the aforesaid provisions that in order to hold the insurer liable for compensation one of the requirements and conditions is vehicular accident must have occurred in a 'public place'. Broadly speaking, when bodily injury to any passenger of public service vehicle or when damage is caused to a third party arising out of use of the vehicle in the 'public place' governs the field arising out of the use of the vehicle in a 'public place'. That means there must be involvement of the vehicle which is defined under the new Act.
16. Therefore, it can safely be concluded that there must be user of the vehicle because of which injury to a person or damage to the goods has been caused in a 'public place'. The expression 'public place' provided under Section 2(34) of the new Act is of vital importance and wide amplitude. It is an inclusive definition. Therefore, definition of a 'public place' under the new Act would include any place which 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 or badges or on payment of fee. This is a settled principle of law. The use may be restricted generally or to particular purpose or purposes. What is paramountly significant is the place ought to have access to take members of public and be available for their use, enjoyment, avocation or any other purpose.
17. In the background of the aforesaid legal set up let us have a close look into facts. In the facts and factual findings recorded by the Tribunal we would like to highlight the following aspects which have remained unimpeachable :
(i) The plot of the original claimant is held by him on licence from the Mary Time Board. Thus, ownership belongs to the Government.
(ii) Again, no permission or pass was required for the public for entering into it. In other words, it is in evidence that the public have an access in the said plot without restriction.
(iii) The debris or salvage after breaking the ship was collected and stored in the plot area which is meant for selling and the customers and consumers could visit along with the vehicles the said plot about which there was no dispute even before the Tribunal.
18. Thus, it becomes clear that, whosoever was interested in purchasing the debris or salvage of broken ship in the plot of shipyard has a right of access and to go for inspection and to buy the things and if deal is struck purchaser can take away the materials or goods.
19. In this context, the offending public carrier admittedly had entered into the plot in question for loading the iron sheets lying in the open plot. Many vehicles come and go for the very purpose in the said plot as per the evidence on record.
20. In this context, the Tribunal has rightly observed, in our opinion, that the vehicles have not to seek permission for the purpose of purchasing the goods or materials lying in the plot. Thus, it was open without any restriction. The Tribunal has also observed, clearly, that in plot No. 12 of the original claimant who is holding as a licensee public could get access.
21. The aforesaid unquestionable factual aspects clearly go to show that the plot of the original claimant could be said to have been covered by expression 'public place' and it is rightly concluded that the said plot is forming part and parcel of and covered under the definition of 'public place' as contemplated by Section 2(34) of the new Act. Therefore, the contention that the accident is not proved to have occurred in the 'public place' is required to be thrown away as it was rightly done by the Tribunal.
22. Not only that, even alternatively use of the vehicle and the manner and mode in which the accident took place implicitly prompt us to believe that the vehicle on account of mechanical failure and while reversing breaking down of gear box and brake pipe all of a sudden reverted from the main road to the open site of the plot. Therefore, occurrence of the accident in question was outside the geographical area and limits of the plot. Because of heavy impact and effect of mechanical failure the public carrier involved in the accident retrieved or intruded back in the premises of the plot. Therefore, on that count also the contention that the accident did not take place in the 'public place' as defined in Section 2(34) of the new Act is totally meritless and is required to be rejected.
23. Apart from that, there is another important aspect which must be borne in mind while taking into consideration the question as to whether the accident had occurred in a 'public place' or not?
24. It is true that one of the requirements of the legal and effective policy of the insurance is that the accident or damage has been caused by or arising out of the use of the vehicle in a 'public place'. In Section 147(1)(b)(i) and (ii), it covers the damage to any property of a third party caused by or arising out of use of the vehicle in a 'public place'. However, it must be remembered that the definition 'public place' corresponding to Section 2(24) of the old Act ought to be construed so as to advance the object of the provision and not to defeat it.
25. The purpose of a definition clause in a statute is two-fold :
(i) To provide a key to the proper interpretation of the enactment, and
(ii) To shorten the language of the enacting part of the statute to avoid repetition of the same words contained in the definition every time the legislature wants to refer the thing contained in the definition. The existence of the definition ordinarily facilitates ascertainment of the scope and area of the operation of the Act.
26. It is equally true that the effect of interpretation clause is not to create rights but to declare the words and expressions used in the Act, have the meaning assigned to them by the definitional provision. Wherever there is definition clause, we have to assume that the words so defined are used in the same sense throughout the statute unless there are indications specifically to the contrary. It is true that where a word in the statute is defined, it is not permissible to ascribe to it a different meaning, even if it be the dictionary meaning at times. The only exception would be where the meaning, if interpreted according to the definition clause, gives rise to any absurdity or impossibility.
27. What will be fact situation when death or bodily injury to any person or damage to any property of a third party has been occasioned or to have arisen out of use of the vehicle in a private place, if the act or omission leading to rise to the accident has occurred in a 'public place'? This is, precisely, an important question which requires examination and adjudication. In our clear opinion, the accident in the aforesaid circumstances could be said to have arisen out of use of the vehicle in a 'public place' though the person died or injured or property which is damaged was not in a 'public place' at the time of the accident, if the act or omission which has given rise to the accident occurred in a 'public place'. To illustrate, suppose a person who was sleeping inside the compound, a private place, dies because of some bricks of the compound wall which had been hit by a vehicle had fallen upon him while the vehicle being in a 'public place', then, in our opinion in that case, it could be said that the accident had occurred in a 'public place'. Our positive answer, therefore, would be in negative. The act of sleeping or omission in not taking sufficient care by the driver of the said vehicle had led to the accident and brought about death of a person though sleeping in a private place. Therefore, the test would be, what is the cause of an accident and what is root of it. If the cause or root leads to the 'public place' or in other words even an accident due to act or omission had occurred in a 'public place' and the result shows that the accident occurred in a private place because process of accident started in a 'public place'.
28. In the present case, the offending vehicle after loading the materials and goods came out of the premises of plot No. 12 of the original claimant and thereafter due to the mechanical failure and breaking down of gear box and brake, etc., while reversing the vehicle again entered into the premises of plot No. 12. So, the act or omission which led to the accident admittedly occurred in a public place outside the plot and damage to the goods occurred inside the plot. In these set of facts and circumstances, we have no hesitation in interpreting and holding that the accident occurred in a 'public place'. So, in our interpretation the definition Clause 2(34) of the new Act includes the accident inside the 'public place' which as such has happened due to the act or omission which led to the accident in a 'private place'. Therefore, alternatively, even if the defence or proposition advanced on behalf of the appellant original opponent is accepted at its face value then also in the factual situational reality which is not in dispute, it is covered by the definition of the 'public place' as per Section 2(34) of the new Act.
29. It may also be noted that if it is interpreted otherwise, it would mean to exclude the accident the cause of which, commencement of which, root of which, is in a public place and the person who suffered bodily injury or fatal injury or a third party who suffered the damage to his property is not in a 'public place' at the time of the accident and such a view would automatically run opposite to the benign and social objects and purposes of the provision. Judicial notice is to be taken at times, about the accident which occurs in a public place and personal injury or fatal injury is received by a person or damage to the property of a third party may not be in a 'public place'. Therefore, we cannot allow the narrow and pedantic interpretation which would in all probabilities defeat the fundamental object of the provisions.
30. We may also add that our interpretation and view we are inclined to take at this juncture, is very much reinforced by the explanation below the proviso to Section 147 of the Motor Vehicles Act, 1988. By virtue of the said explanation deeming fiction is devised again by the legislature in its wisdom so as to cover the aforesaid fact situation. The explanation to Section 147 of the new Act, for removal of doubts provides 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'. Section 147 of the new Act provides requirements of policies and limits of liability. One of the requirements for valid and effective policy of the insurance is the insured must have paid premium and damage to the property must have been caused by or arising out of use of the vehicle in a 'public place'. Definitional clause of 'public place' is in Section 2(34) of the new Act [Section 2(24) of the old Act]. Though it is a matter of common understanding that on account of use of vehicle not in a 'public place' at the relevant time but it is shown conclusively that the injury or damage was caused on account of act or omission which led to the accident occurred in a 'public place', liability would arise. However, the legislature in its wisdom has also introduced an explanation in Section 147 of the new Act for removal of doubts. Therefore, we have no slightest hesitation in holding that death or bodily injury or damage to any property of a third person could be said to have been caused by or to have arisen out of the use of the vehicle in a 'public place' notwithstanding that the person who is dead or injured or the property which is damaged had not been in a 'public place' at the time of the accident if the act or omission which led to the accident had occurred in a 'public place' Admitted facts would also attract this principle. Therefore, also the appellant, original opponent insurer is liable to indemnify the insured.
31. After having gone into the facts of the case, rival versions and considering the definitional clause of Section 2(34) of the new Act read with Section 147 of the new Act and purport and design of the said provisions, situational reality, the appellant-original opponent No. 3, insurer is liable to pay compensation to the original claimant as it is bound to indemnify the insured owner of the vehicle.
32. After having taken into consideration the factual scenario emerging from the record of the case and examining the relevant proposition of law, we are of the opinion that the factual findings recorded by the Tribunal on this score are correct, legal and valid. The said findings do not require our interference. We, therefore, confirm and reiterate that the accident in question did occur in a 'public place' as defined under Section 2(34) of the new Act.
33. Obviously, next contention would be regarding examination and appreciation of the quantum awarded by the Tribunal. Learned advocate appearing for the appellant has incidentally challenged that the amount of compensation towards damage to the goods to the extent of Rs. 2,58,500 is excessive and unreasonable. It may be straightaway pointed out that this finding of fact recorded by the Tribunal is founded upon reliable and unquestionable evidence apart from the evidence of the partner of the claimant Corporation. There was evidence of the Government surveyor who undertook survey of the goods damaged and submitted preliminary report as well as the second report, which are placed on record and rightly relied upon by the Tribunal. As per the report of the surveyor salvage value is deducted. According to the surveyor against whom no allegation is made, the amount of Rs. 2,58,500/- is just towards the damage to the goods sustained by the claimant Corporation on account of vehicular accident.
34. It may further be stated that some of following items were damaged in the vehicular accident :
(i) Engine
(ii) Engine turbo (two Nos.)
(iii) Panel board
(iv) Air conditioner split unit
(v) Radio unit
(vi) Fire unit These valuable items were damaged on account of the fact that apart from retrieval of the truck from the road to the premises, the goods were crushed, the public carrier had run over the goods which were surveyed by the authorised Government surveyor Malvi Mechanical Works who had gone to the spot and undertook survey of damage and submitted first report at Exh. 17 and thereafter salvage value was assessed and that report was submitted at Exh. 23. Therefore, after deducting the salvage value from the damages caused to the goods the surveyor has clearly stated in his report that the claimant Corporation has sustained damage to the tune of Rs. 2,58,500/- and the Tribunal has placed reliance on these survey reports and has awarded full amount as per the survey assessment. Reliance was also placed by the claimant Corporation on Exh. 16 panchnama of scene of accident wherein the value of the goods damaged was mentioned. As per Exh. 16 damages came to be assessed at Rs. 3,50,000/-. However, the claimant Corporation demanded the amount of Rs. 2,58,500/- as per the survey assessment of the Government surveyor and in our opinion the Tribunal has rightly awarded full amount by way of compensation. We, therefore, find no substance in the second contention also. Therefore, this contention is also rejected.
35. After having examined the facts and circumstances and evidence emerging from the record of the present case, we are satisfied that the impugned award is just and legal. We find no other material which would warrant our interference. Consequently, the present appeal is required to be rejected. Accordingly, it is rejected at the admission stage.