New India Assurance Co. Ltd., Allahabad v. Ashok Singh And Others

1. In this appeal under Section 110-D of the Motor Vehicles Act, the appellant insurance company claims to be exonerated from the liability fastened on it for payment of compensation to the respondent No 1 for injuries sustained by him on account of use of truck No. UHV 0207 owned by the respondent No. 2 and at the relevant time driven by respondent No. 2's driver Ghanshyam (respondent No. 3).

2. At this stage, it is not in dispute that the truck was owned by respondent No. 2. On 16.4.1984, it was in charge of respondent No. 3 who in the process of carrying coal in the truck to Allahabad, also took with him Ashok Singh. On the way, the truck met with an accident as a result of which Ashok Singh sustained fractures of tibia and fibula bones of both the legs. After trial, the Motor Accidents Claims Tribunal assessed Rs. 12,000/- as damages for the injuries sustained. In addition, Rs. 1,000/-have been awarded for pecuniary damages for amount spent on treatment and yet another amount of Rs. 1,000/- for mental and physical agony. As admittedly truck was insured with the appellant insurance company, it has also been made liable jointly with the owner and the driver of the vehicle.

3. The appellant contends that on the claimant's (Ashok Singh) own showing, he was a gratuitous passenger and, therefore, the appellant cannot be held liable either under statute, i.e., Section 95 of the Motor Vehicles Act, 1939 or under the contract of insurance.

4. Unfortunately, the Claims Tribunal remained completely unmindful of the capacity in which Ashok Singh was travelling in the truck when he sustained injuries. Consequently, it has returned no finding in this behalf. We find that the claimant himself has pleaded that on the driver's invitation, he travelled with him in the truck.

दिनांक 16.4.1984 को अनावेदक क्र. 2 ट्रक चालक घनश्याम ने आवेदक से कहा कि वह ट्रक लेकर इलाहाबाद जा रहा है। यदि वह खाली हो तो उसके साथ चले। आवेदक उसके ट्रक में बैठ गया। Explaining these allegations, the owner and the driver, in their joint written statement, submitted that as driver Ghanshyam was not well, therefore, he took the claimant Ashok Singh as an additional driver in the truck on the assurance that Ashok Singh shall be paid his wages by the owner. As against this, the appellant insurance company raised a specific plea that the claimant was a gratuitous passenger in the goods vehicle and, therefore, the insurance company was not liable. The Claims Tribunal framed no specific issue on this controversy despite such pleadings. This appears to be the precise reason why it has neither referred to nor decided this controversy. We, however, find from the oral testimony of claimant Ashok Singh that in examination-in-chief, he stuck to the allegations made in the claim petition. In cross-examination by counsel for the driver and the owner, he stated that on the driver's asking he came on the truck as a helper driver. The appellant did not cross-examine the claimant on this count. The owner did not examine himself. Ghanshyam driver stated in examination-in-chief that he took the claimant as a helper driver on an assurance that he will be paid his wages by the owner. From this evidence, it is possible to infer that the claimant was taken in the truck by the driver Ghanshyam as a helper driver. The question nevertheless would be whether the driver had such an authority from the employer, viz., the owner of the truck. There is no such plea raised either by the owner or the driver of the truck. Although Ghanshyam has deposed that payment to claimant was assured, yet there is no evidence at all that any such amount was either paid or agreed to be paid by the owner. It was for the owner to have entered into the witness-box and depose that he had authorised the driver Ghanshyam to take any helper driver in case of need and that he undertook to remunerate any such helper. Faced with this difficulty, learned Counsel for the owner and the driver submitted that the driver must be deemed to have such implied authority. We, however, find ourselves unable to accede to this contention. Although the owner and the driver have filed a joint written statement, yet there is not even the slightest whisper therein as to the terms of contract between them to enable the court to infer any such suggested implied authority to take a helper driver in the truck. Instead, we find that Rule 111 of the Madhya Pradesh Motor Vehicles Rules, 1974 creates a bar to carrying of any person in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle, or the owner or the hirer and except in accordance with that rule. Admittedly, the vehicle in question was a goods vehicle and injured Ashok Singh was not an employee of the owner much less a bonafide employee. It is not the case of the owner of the vehicle that injured Ashok Singh fell within the category of persons who could be carried in that vehicle. Learned counsel for the respondent No. 2 (the owner of the vehicle) relied upon a Division Bench decision of this court in Patharibai Karansingh v. Firm Lalji Shankarlal 1985 ACJ 526 (MP), for his submission that the injured must be taken as a person in the vehicle in course of his employment. To us, the decision is of little help to him. In para 23 of the report, the conclusion of the Division Bench is expressed in these terms:

On a plain reading of the language of Section 95 (1) (b) proviso (ii) it seems to us that the coverage of risk is extended to all those who are required of necessity to be on the insured vehicle by reason of or in pursuance of contract of employment and the employer having not been specified therein, there is no reason to put a limitation that the benefit of coverage of risk is intended only for those who are in the employment of the insured owner of the vehicle.

That decision is an authority for the proposition that the phrase "by reason of and in pursuance of contract of employment" appearing in Section 95 (1) (b) proviso (ii) of the Motor Vehicles Act, 1939 does not limit the benefit of coverage of risk only for those who are in the employment of the insured owner of the vehicle but extends also to those who are required as a necessity to be on the insured vehicle. The deceased in that case were the labourers hired by Thakur Sawdakar and Company for carrying bags of tamroo leaves on the truck. The court held that the deceased being employees of the owner of the goods carried in that truck were entitled to the protection of compulsory insurance under Section 95 (1) (b). It was on this basis that the insurance company was made liable. Clearly, therefore, this decision does not support the contention canvassed by the learned Counsel for the owner of the vehicle.

5. The contract of insurance, in the instant case, evidenced by certificate of insurance filed on record does not cover the risk of death or bodily injury to any person other than the one created by Section 95 of the Motor Vehicles Act. The appellant can, therefore, be made liable jointly with the owner only if the terms of Section 95 of the Act fasten that liability. The relevant part of that section is as follows:

95. Requirements of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--

(a) is issued by a person who is an authorised insurer or by a co-operative society allowed under Section 108 to transact the business of an insurer, and

(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;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required--

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 or 1923), in respect of the death of, or bodily injury to, any such employee--

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods vehicle, being carried in the vehicle, or

(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or

(iii) to cover any contractual liability.

6. It was faintly suggested that the deceased should be treated as 'third party' and, therefore, the appellant insurance company must be made liable. Such contention was repelled by the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd. 1977 ACJ 343 (SC). It was further held that the insurance cover is not available to the passengers in view of Clause (ii) of the proviso appended to Section 95 (i). It was further held that it is not required that the policy of insurance should cover risk to the passengers who are not carried for hire or reward. A Full Bench of this court in Harishankar Tiwari v. Jagru 1987 ACJ 1 (MP), held that while any third party, i.e., one who is not an occupant of the vehicle, is covered under the policy but all occupants of the vehicle are not so covered except those specified in Section 95 (1) of the Motor Vehicles Act, 1939. Recently, another Full Bench of this court in Kallu Maharaj v. Meenabai 1989 ACJ 770 (MP), held that the vehicle referred to in the clause "a vehicle in which passengers are carried for hire or reward" occurring in Section 95 (1) of the Motor Vehicles Act necessarily means that vehicle which can be lawfully used for carrying passengers for hire or reward. Referring to Rule 111 of the MP. Motor Vehicles Rules, 1974, it was observed that in terms of that rule, no person can be carried in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle or the owner or the hirer and except in accordance with that rule. The conclusion reached by the Full Bench is that a truck (goods vehicle) cannot be lawfully used for carrying a person who has not hired the truck but travels with a view to fetch his goods from some other place. Such a person can be treated only as a gratuitous traveller and, therefore, the insurer, in the absence of any term to the contrary in the insurance policy would not be liable for the tortious act of the owner as this would not be the requirement of the insurance policy as laid down by Section 95 (1) of the Act. Persons travelling in a truck, not presently loaded with their goods for the purpose of fetching their goods from another place, were held as gratuitous travellers not travelling for hire or reward within the meaning of Section 95 (1) of the Motor Vehicles Act. Reference may also be usefully made to a Division Bench decision of this court in Shivlal v. Rukmabai 1987 ACJ 341 (MP). In that case, one Laxmi-narayan, an agriculturist, was travelling in the tractor which was brought to his field in connection of the boring of a well. The tractor turned turtle resulting in death of Laxminarayan. In absence of anything to indicate that Laxminarayan had hired the tractor or had goods in the tractor to take care of, it was held that Laxminarayan was a gratuitous passenger as it could not be said that he was travelling in the tractor by reason of or in pursuance of a contract of employment. On our finding reached above that the injured was not travelling in the vehicle for hire or reward or by reason of or in pursuance of a contract of employment, he must be held as passenger not lawfully travelling and, therefore, in the absence of any contract to the contrary, he cannot be held as a person whose risk for life or bodily injury must be taken as statutorily covered by the insurance. He can only be held to be a gratuitous passenger and, in the light of the decisions aforesaid, and in view of the insurance policy in the present case, the insurance company, viz., the appellant, cannot be held liable for compensation.

7. Mr. L.P. Singh, learned Counsel for respondent Nos. 2 and 3, relied upon two single Bench decisions of the Gujarat High Court in Pardi Zankhri, Nes Karanj Group Dudh and Sakbhaji Sahkari Mandi Ltd. V. Govindji Bhagwanji 1977 ACJ 270 (Gujarat) and Bai Dahiben v. Jesingbhai Bijalbhai 1984 ACJ 150 (Gujarat). In the first case, the insurance company was held liable for the death of a passenger in the vehicle because it felt bound by an earlier decision of that court and on a finding that the deceased as a matter of practice was entitled to travel in the truck and, therefore, was not an unauthorised person travelling in the truck. In the latter case, the deceased passenger in the goods vehicle had agreed to pay for the baskets he carried with him in the truck. Under these circumstances, it was held that the deceased was neither a gratuitous passenger nor an unauthorised person travelling in the truck but he was a passenger for hire or reward. Under these circumstances, the insurance company was held to cover the risk of such a passenger. These decisions, in our opinion, do not lay anything contrary to what has been said by the aforesaid two Full Bench decisions of this court. Even if, for any reason, they are held laying down anything different or contrary to those decisions, we prefer to follow the view of this court as expressed in the two Full Bench decisions with which we feel bound.

8. For the aforesaid reasons, this appeal succeeds and is allowed. The award of the Tribunal, in so far as it makes the appellant also liable under the award, is hereby set aside. Under the circumstances, there shall be no order as to costs of this appeal.