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217. Repeal and savings.-

(2)(c) any document referring to any of the repealed enactments or the provisions thereof, shall be construed as referring to this Act or to the corresponding provision of this Act;

25. Taking up the first part of principal question arising in this matter, it is to be examined if the policy in question has been that of limited liability with reference to Sub-clause (i) of Clause (b) of Sub-section (2) of Section 95 or it would be covered by Clause (c) of Sub-section (2) of Section 95? It is at once obvious that in order to address to this question, it is the class of vehicle that is relevant; of course, along with the insurance coverage as undertaken in the present case. As noticed, under Section 95 (2) of the old Act, a policy of insurance was required to cover statutory liabilities that were classified in respect of death or bodily injuries for three different classes of vehicles. Clause (a) dealt with the matter where the vehicle was a goods vehicle; Clause (b) related to a vehicle in which passengers were carried whether for hire or reward or because of a contract of employment; and Clause (c) was the residuary clause dealing with all other classes of vehicles, of course, subject to the provisions of Clause (d) dealing with limits of liability on damage to any property of third party with which we are not concerned in the present case. While thrust of the submissions of learned Counsel for the insurer has been that because the Jonga jeep in question was a vehicle in which passengers were carried for hire or reward, the liability of the insurer in respect of any person other than the passengers would be limited upto Rs. 50,000/-; on the other hand, learned Counsel for the owner of the vehicle emphasized that it were a vehicle of 'any other class' as contemplated by Clause (c) of Section 95(2) and, therefore, coverage would be upto the extent of liability incurred.

26. So far the vehicle in question bearing registration No. RJC 5129 is concerned, its description is available in the registration certificate Ex.36 that shows its class as LMV i.e. Light Motor Vehicle; maker's name as Willy's; type of body as D/van; its year of the manufacture 1957; seating capacity six in all; and engine capacity 32 HP. In relation to this vehicle, so far insurance coverage is concerned what has been produced on record is only the cover note Ex.37 and not the insurance policy. The cover note shows the vehicle to be having licenced carrying capacity for six in all; and so far coverage is concerned, though three different items are printed as: 'Comprehensive', 'Third Party', and 'Act Liability' and there appears one imprecise tick mark but nothing has been struck off as required that 'Strike off which are not applicable'. The effective date of commencement is stated as 08.05.1989 and the date of expiry of insurance is stated as 07.05.1990. So far limitation on its use is concerned, in Clause (7) of the said cover note, it has been given out as 'Private use only'. Premium computation shows that Rs. 180/- has been charged and paid with reference to T.P. coverage.

27. Reading the registration certificate and the cover note together, the question naturally arises as to which clause of Sub-section (2) of Section 95, the insurance coverage is referable to? It has not been the case of the insurer that the vehicle in question answers to the description of the vehicle contemplated by Clause (a) but the submission has been that the passengers were being carried in the vehicle in question and, therefore, Clause (b) shall apply. Though in this case, no evidence has been led on behalf of the insurer but the fact that fare-paying passengers were being carried in the vehicle in question appears in the very statements of the claimants' witnesses. On a comprehensive consideration of the testimony of AW-2 Bhikhe Khan, AW-3 Gemar Singh and AW-4 Subhan Khan it is but apparent that the vehicle was being plied between Balotra and Nakoda, transporting the passengers by charging fare, as Subhan Khan stated having paid fare of Rs. 3/- and Gemar Singh also stated having made payment of fare of Rs. 3A to the driver Sabir Khan. However, the question is whether for such use of the vehicle as given out by the said passengers of the vehicle at the time of accident, the insurance coverage would be directly referable to Clause (b) of Sub-section (2) of Section 95?

28. It is noticed from the provisions of Section 95 (2) of the Act of 1939 that it is not the use of vehicle at the time of accident that has bearing on the question of insurance coverage but it is the class of vehicle i.e., the purpose for which the vehicle is meant, that is relevant. In the present case, it is noticed that the appellant insurer has consciously issued the cover note with stipulation in Clause (7) thereof on limitation to use as 'private use only'. The vehicle, even if it be considered to be a delivery van, was not meant for carriage of passengers for hire or reward or for any reason of contract of employment and it was meant for private use and for that purpose insurance coverage was obtained and was undertaken by the appellant. The appellant-insurer has chosen not to lead any evidence and not to produce insurance policy on record and from the material that is available, it is difficult to countenance the submissions of learned Counsel for the appellant that the coverage could be referable to Clause (b). On the contrary, for the cover note stating it to be for the vehicle meant for private use, the coverage would directly be referable to Clause (c) only.