AI Structured Summary
Not yet generated for this judgment
Judgment
P. Sathasivam, J.—Since, common questions involve in all the above appeals, the same may be disposed of by the following order:
All the above appeals have been filed by the Insurance Company questioning its liability in view of Sections 95 and 96 of the Motor Vehicles
Act, 1939 as well as terms and conditions of the policy executed in the respective cases.
In C.M.A. No. 227 of 1987 the wife and children of the deceased Varadarasu Pillai have filed M.C.O.P. No. 130 of 1985 before the Motor
Accidents claims Tribunal, Tindivanam, claiming a sum of Rs. 75,000 as compensation. Since the deceased died while he was travelling in a goods
vehicle accompanying the goods, they have impleaded the owner of the lorry as well as his insurer as respondents. The Tribunal after holding that
the accident was caused due to the rashness and negligence of the driver of the lorry, passed an award for Rs. 55,250 in favour of the petitioner
therein and directed both the respondents to pay the same jointly and severally. Aggrieved by the said award, the second respondent before the
court below, Insurance Company has filed C.M.A. No. 227 of 1987 before this Court questioning its liability.
In C.M.A. No. 504 of 1987 for the death of one Gunasekaran, the parents have filed M.C.O.P. No. 1154 of 1985 on the file of Motor
Accidents Claims Tribunal, Cuddalore, claiming compensation of Rs. 1,50,000. The deceased travelled in the goods van T.N.F. 8709 for
''transport of goods, and while he was returning to Cuddalore in the same vehicle, the vehicle met with an accident thereby he died oft the spot.
The court below after holding that the accident was due to the rash and negligent driving of the vail driver and after holding that the claimants are
entitled to claim compensation against the Insurance Company, passed an award for Rs. 38,000 against respondents 1 and 3 therein (owner and
insurer). Aggrieved against the said award the third respondent namely United India Insurance Company has filed the present appeal before this
Court challenging its liability.
In the very same appeal not satisfied with the quantum of compensation, the claimants have filed cross appeal for the disallowed portion of the
claim on various grounds.
In C.M.A. No. 580 of 1987 the claimant who sustained injuries in a motor accident that took place on 23.3.1985 while travelling in a Matador
van T.N.I. 2786 met with an accident filed M.C.O.P. No. 655 of 1985 on the file of Motor Accidents Claims Tribunal, Madurai, claiming a sum
of Rs. 1,00,000 as compensation. The Tribunal after holding that the accident was caused due to the rash and negligent driving of the goods
vehicle passed an award for Rs. 51,000 in favour of the petitioner and directed the respondents 1 and 3 (owner of the van and insurer) to pay the
said amount. Aggrieved against the award of the Tribunal the third respondent namely New India Assurance Company has filed the above appeal
questioning their liability.
In C.M.A. No. 1116 of 1990 one Muthammal has filed M.C.O.P. No. 73 of 1989 on the file of Motor Accidents Claims Tribunal,
Kanyakumari at Nagercoil against the death of her husband Selvaraj in a motor accident that took place on 29.4.1989 claiming a compensation of
Rs. 3,00,000. The Tribunal after holding that the accident was caused due to the rashness and negligence of the driver of the goods vehicle and
after holding that the Insurance Company has to indemnify the owner of the van passed an award for Rs. 1,41,000 and directed the third
respondent Insurance Company to deposit the said amount. Aggrieved by the said award, the third respondent namely Oriental Insurance
Company has filed the above appeal questioning its liability.
As already stated, the appellants in all the appeals namely Insurance Companies questioning only their liability as per the provisions of the Motor
Vehicles Act as well as on the terms and conditions of the policy, there is no need to discuss or mention the facts leading to the accident,
negligence and quantum aspects.
On behalf of the appellants, I have heard Mr. K.S. Narasimhan and Mr. R. Vedantham. On behalf of the claimants, I have heard the arguments
of Mr. V. Prabakar, Mr. K.V. Sridharan and Mr. K. Sri kumaran Nair. On behalf of the owner of the vehicle, Mr. R. Muthukumaraswami
advanced his arguments.
Mr. K.S. Narasimhan and Mr. R. Vedantham raised the following contentions:
(i) The Tribunal failed to note that the deceased was not required to be covered u/s 95 of the Motor Vehicles Act, nor was covered under the
terms and conditions of the police. (ii) The Tribunal failed to see that the deceased had travelled in the vehicle as owner of the goods and in the
absence of any contract of employment between the owner of the vehicle and the deceased passenger, the Insurance Company cannot be held
liable in law to compensate the loss sustained by the claimants. (iii) The Tribunal failed to note that the Insurance company is not liable to indemnify
the owner of the insured under law as well as under the terms and conditions of the policy. Further, the deceased/injured was not travelling either in
pursuance to the contract of employment or in the course of employment and as such he is a person not required to be covered u/s 95 of the
Motor Vehicles Act or covered under the terms of the policy. (iv) The award of the Tribunal making the Insurance Company also liable is contrary
to the various decisions of this Court as well as the Supreme Court. 11. On the other hand, Mr. V. Prabhakar defended the award of the Tribunal
and submitted that in the light of the factual position available in the respective cases coupled with Section 95 and 96 of the Motor Vehicles Act as
well as terms and conditions of the Policies the Insurance Company is liable to pay the amount in all the cases. According to him, the court below
after correctly construing the above provision and on the basis of the factual position, passed the award directing the Insurance Company to pay
the same. He also cited various decisions in support of the award of the Tribunal. Mr. R. Muthukumaraswami and Ors. have also raised similar
contentions supporting the award of the Tribunal.
I have carefully considered the rival submissions.
In order to appreciate the arguments of both sides and for the disposal of the above appeals, I have to consider the relevant section namely
Section 95 of the Motor Vehicles Act, 1939 which reads as follows:-""95. Requirements of Policies and limits of liability--(1) In order to comply
with the requirements of this chapter, a policy on insurance must be a policy which-
(a) is issued by a person who is an authorised insurer or by a cooperative society allowed u/s 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 Seb-section (2).
(c) 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 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 of 1923), in respect of the death or, 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 6r 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. Explanation:- For the
removal of doubts, it is hereby declared 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.
(2) X X X
(a) X X X (b)xxx
(c) X X X
(d) X X X
(3) X X X
(4) X X X
(4-A) X X X
(5) X X X.
In order to understand the above appeal cases fully, I hereby recapitulate the following factual position as seen from the pleadings of both
parties. In C.M.A. No. 227 of 1987 the deceased was travelling in a goods vehicle accompanying his goods and while doing so, he met with a
fatal accident. In C.M.A. No. 504 of 1987 the deceased viz., K. Gunasekar while travelling in a goods van for transport of goods as agent of the
owner of the goods met with an accident and died. In C.M.A. No. 580 of 1987 the claimant in pursuance of the contract of employment, was
deputed to take the waste paper load to a mill on that date. In that way he engaged the said van and then he travelled in the vehicle in order to
safeguard the load and deliver the goods to the mill safely. While he was travelling in the goods vehicle, he met with an accident and sustained
injuries. In C.M.A. No. 1116 of 1990 the deceased Selvaraj hired tempo van T.C.K. 5270 on 29.4.1989 and loaded grinding stones and ammi
and kulavi etc., for transporting the same to Kulasekaram. The deceased was also travelling in the tempo van and he was sitting in the front seat
(i.e., near the driver''s seat). While travelling in the said vehicle, due to negligence of the driver, the van fell into a tank to a distance of about 30 feet
down from the road level due to which, the deceased sustained fatal injuries. The claimants have projected their case that the deceased/injured
were accompanying the goods in order to safeguard the same and with specific terms of agreement agreed by all the parties concerned. In those
circumstances, as per Section 95 of the Motor Vehicles Act as well as terms and conditions of the insurance policies, the insurer has to indemnify
the owner and according to the claimants, the court below has rightly directed the Insurance Company to satisfy the awards passed in all the four
cases.
In view of the above factual position, let us consider the various decisions cited by the learned Counsel for the Insurance Company. In the
Commonwealth Assurance Co. Ltd., Bombay v. V.P. Rahim Khan Sahib 1971 A.C.J. 295 a single Judge of this Court with reference to Section
95 of the Motor Vehicles Act has observed that in case of passengers carried in a goods vehicle an Insurance Company is liable to pay
compensation only in respect of death or injury to such passengers who are carried in the vehicle by reason of or in pursuance of a contract of
employment and that an owner of goods accompanying the goods in a truck cannot be said to be travelling in the truck by virtue of any such
contract.
In C. Narayanan v. Madras State Palm Gur Sammelan 1974 A.C.J. 479 a Division Bench of this Court while construing Section 95 of the
Motor Vehicles Act, 1939 has held that a passenger carried by a lorry will not be covered by the insurance policy, unless he is proved to be a
passenger travelling by reason of or in pursuance of contract of employment. The Bench has also concluded thus:
... The proviso to Section 95(1) also makes it clear that a policy is not required 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 liability arising under the Workmen''s Compensation Act, 1923, in respect of the death of bodily
injury to any such employee, Therefore the only liability for death or injury to the person in the course of his employment is under Workmen''s
Compensation Act. If the person was not in employment and if he was travelling without authorisation, there is no provision in the Act to protect
such a person. The rules framed under the Motor Vehicles Act prohibit travel by any person as a passenger in a goods vehicle. Under the
circumstances, we see no ground for fastening any liability on the insurer on the owner of the vehicle for the injuries sustained by the person who
was travelling without authority in the lorry and sustained injuries due to the negligence of the driver. The question has been elaborately considered
by Ganesan, J. in Common Wealth Assurance Co. Ltd. v. Rahim Khan Sahib 1971 A.C.J. 295. We agree with the view of the learned Judge and
hold that a passenger carried by a lorry will not be covered by the insurance policy, unless he is proved to be a passenger travelling by reason of or
in pursuance of a contract of employment.
In Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1988 A.C.J. 343 it was held thus:
Therefore it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As u/s 95 the risk
to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the Insurance Company
will have to be accepted and the Insurance Company held not liable under the requirements of the Motor Vehicles Act.
In G. Dhyanand v. Zaamni Bi 1982 A.C.J. 399 a Division Bench of this Court has held thus:
But as far as the Insurance Company is concerned, the terms of the policy will have to prevail. The policy is marked as Ex. B-1. On a perusal of
the policy it is seen that it is nothing but a reproduction of the terms set out in Section 95 of the Motor Vehicles Act. Following the view expressed
in the decisions referred to above interpreting similar clauses in the policy of insurance, we have no hesitation in holding that the second appellant,
Insurance Company is not liable since the liability in respect of the passenger in the lorry has been specifically excluded by the terms of the policy.
The very same view has been reiterated in C.M.A. No. 398 of 1979, dated 24.7.1981.
In M. Kandaswamy Pillai v. Chinnaswamy 1985 A.C.J. 232 the Division Bench of this Court after construing Section 95 in the light of the
insurance policy have held thus:
Quite rightly therefore the Tribunal held both in law and under the policy of insurance that the Insurance Company is not liable to the claims made
in these proceedings.
In Oriental Fire and General Insurance Company Limited v. Hirabai Vithal Nikam, 1988 A.C.J. 494 the Full Bench of the Bombay High Court
has held that where a passenger is carried in a goods vehicle for a hire or reward and the terms of the contract of insurance do not cover such
carriage, the insurer is not liable for the death or bodily injury to such a passenger.
In New India Assurance Co. Ltd. v. Santha 1988 A.C.J. 689 the Division Bench of this Court has held that in the case of death of a owner
accompanying the goods who has not been specifically covered by the policy together with the provisions of Section 95(2)(b), the Insurance
Company cannot be mulcted with liability.
In Indrani v. S. Ramalingam 1989 A.C.J. 1007 a passenger was allowed by a driver to travel in a goods vehicle ultimately he was killed when
the vehicle dashed against a tree. In those circumstance, the Division Bench of this Court in the said decision has held that the deceased was not
carried for hire or reward or by reason of or in pursuance of a contract of employment, hence the Insurance Company is not liable to pay any
amount. The very same view has been expressed by another Division Bench decision of this Court reported in New India Assurance Co. Ltd. Vs.
B. Saraswathi Ammal and Others, .
In National Insurance Co. Ltd. Vs. Dundamma and others, the Full Bench of Karnataka High Court while interpreting Section 95(1)(b) of the
Act coupled with the policy therein has held that persons travelling in a goods vehicle other than employees of the owner of the vehicle are not
required to be covered by a policy issued in terms of Section 95 by force of Clause (ii) of the proviso to Section 95(1)(b).
In Bakthavatsalam Vs. S. Rajalakshmi and Others, a Division Bench of this Court has held that since the deceased was an unauthorised
passenger, Insurance Company cannot be held liable. However, the Bench has directed the owner to pay the compensation.
The very same view has been taken by another Division Bench in Ramadoss Motor Transport Vs. New India Assurance Co. Ltd. and Others,
The Full Bench of Orissa High Court in New India Assurance Company Ltd. Vs. Kanchan Bewa and Others, while interpreting Section 95(1)
(b) of the Act has concluded that Insurance Company is not liable for death or injuries suffered by persons carried for hire or reward in a goods
vehicle.
In New India Assurance Co. Ltd. Vs. Mohanbhai Ravjibhai and Others, the Division Bench of Gujarat High Court has held that if a claimant
was not found to be an employee or a passenger for hire or reward but was found to be a gratuitous passenger, Insurance Company cannot be
held liable for compensation.
Finally after taking through the latest Division Bench decision of this Court reported in Kanniappa Nadar v. Jayapandi and 10 others (1997) 1
L.W. 174 the learned Counsel for the Insurance Company submitted that in view of the law laid down by the various earlier decisions of this
Court, and other High Courts as well as Apex Court they insisted that instead of following the above said ruling (i.e. (1997) 1 L.W. 174 D. B
requested to apply the principle enunciated in the decisions cited earlier and prayed for interference in these appeals.
Mr. R. Muthukumaraswami, learned Counsel appearing for the owner of the Vehicle in C.M.A. 504 of 1987 heavily relied on the recent
Division Bench Judgment of this Court reported in (1997)1L.W. 174 cited supra. After taking me through the said judgment, he submitted that
since the Bench has considered all the earlier case laws of this Court as well as the Apex Court and rejected the claim of the Insurance Company,
contended that the said decision is binding on me and prayed for dismissal of the appeals.
Mr. V. Prabhakar, learned Counsel appearing for the claimants in C.M.A. No. 504 of 1987 before cited various decisions in support of his
contention brought to my notice that the Insurance Company has not let in any evidence to controvert the evidence adduced by the claimants with
regard to the nature of employment and the purpose and reason for travelling in a goods vehicle along with the goods. It is true that except marking
the insurance policy in 3 cases they have not taken any care to examine any one to rebut the evidence let in on the side of the claimants. In all the
cases evidence was let in on the side of the claimants in order to prove that the deceased/injured was travelling in a goods vehicle accompanying
the goods.
In these circumstance, it is contended that so long as owner has not committed any breach, the insurer is undoubtedly liable to satisfy the award.
Now I shall consider the decisions referred to by Mr. V. Prabhakar in support of his contentions. In Skandia Insurance Co. Ltd. Vs.
Kokilaben Chandravadan and Others, there was a breach of condition of excluding driving of vehicle of the insured owner by a person not duly
licensed. After considering Sections 96(2)(b)(ii) and 84 of Motor Vehicles Act, 1939, the Apex Court in the said decision has held that the owner
of the vehicle is not liable where accident caused by an unlicensed person when licensed driver employed by the owner left the vehicle unattended
contrary to express or implied orders of the owner. They further held that exclusion clause in the contract of insurance making the owner absolutely
liable irrespective of circumstances leading to driving by unlicensed driver must be read down being in conflict With the main statutory provision.
After considering the said provisions and in the light of the policy of the insurance Their Lordships have held that ""the exclusion clause does not
exonerate the insured.
In B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, Their Lordships of the Supreme Court have held that
breach of carrying humans in a goods vehicle more than the number permitted in terms of the insurance policy cannot be said to be such
fundamental breach so as to afford ground to the insurer to deny indemnification unless there were some factors which contributed to the causing of
the accident. They further held that the exclusion term of the insurance policy must be read down to serve the main purpose of the policy. Further
Their Lordships observed thus:
The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the
goods vehicle could not have Contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible
account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the
Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, the aforesaid exclusion term of the insurance policy must be read down so
as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle, which we hereby do.
In Abdul Razak v. Sharifunnisan AIR 1983 All. 400 it is held that whenever a person hires a goods vehicle for transporting his goods from one
place to the other, he himself or his employee is entitled to be carried in the vehicle under the provisions of the Act and the Rules framed
thereunder. The risk of persons who are carried in a transport vehicle is cpmpulsorily covered by an insurance policy. Proviso (ii) to Section 95(1)
(b) of the Act also lays down that a policy shall be necessary where passengers are carried in a vehicle for hire or reward or by reason of or in
pursuance of a contract of employment. 34. As already stated, strong reliance was placed in support of a recent Division Bench decision of this
Court reported in Kanniappa Nadar v. Jayapandi and 10 others (1997) 1 L.W. 174. Since both sides referred the above judgment and being the
latest Division Bench judgment, now I shall consider whether the decision rendered in that case is applicable to the present case. In the said case
on 27.3.1985 when some of the claimants and others were travelling in a lorry with paddy bags between Tirunelveli and Kariyapatti, near the
garden of one Thanga Pandian on the Virudhunagar Kallakurichi Road, an accident took place in which some persons lost their lives and other
sustained injuries. The legal representatives of the deceased passengers who travelled in the lorry claimed various amounts as compensation stating
that the lorry involved in the accident was driven rashly and negligently by its driver and that has caused the accident and therefore, compensation
should be awarded to them. The owner of the lorry has pleaded that he was not liable for payment of compensation. The Insurance Company filed
a counter therein and contended that the owner of the lorry had permitted 50 passengers to be carried in the goods vehicle. The same was
opposed to the provisions of the Motor Vehicles Act as well as the provisions of the policy. The persons accompanying the goods were not
covered under the terms of the policy issued by the Insurance Company, therefore no liability for payment of compensation could be fastened on it.
Dealing with the liability of the Insurance Company, the Tribunal took the view that the parsons who travelled in the lorry and had sustained injuries
or lost their lives had not been established to have travelled on payment of hire charges and that they were in the lorry only for the purpose of
safeguarding their paddy bags and for loading and unloading purposes. In the view so taken the Tribunal fastened liability on the Insurance
Company for payment of compensation to the claimants. Against the said award appeals have been filed by the Insurance Company and
contended that the permit in respect of the lorry did not permit carrying of passengers in the goods vehicle and there is a gross violation of the
permit conditions and therefore, the Insurance Company was not liable as per the Act and the terms and conditions of the insurance policy. The
learned single Judge in that case accepting the argument of the learned Counsel for the Insurance Company allowed the appeal and directed the
owner of the lorry to pay the amount and modified the award of the Tribunal as mentioned above. In other words, the liability of the appellant
Insurance Company will stand deleted. Aggrieved by the common judgment of the learned single judge, the owner of the vehicle has preferred
Letters Patent Appeals before the Bench of this Court. Before the Bench in the above referred case it is contended that the learned Judge has
failed to see that mere breach of the exclusion clause in the policy does not absolve of his liability and the onus is on the insurer to establish that the
insured himself is guilty of committing the breach of contract of insurance and the learned Judge ought to have held that the immunity sought under
Se''c. 96(2)(b)(ii) of the Act was not available to the Insurance Company in respect of the issue governing the claim in question. It is also
contended that there can be no breach or violation of the promise on the part of the insured so as to enable the insurer to take shelter under the
umbrella of the exclusion clause. It is further contended that the learned Judge should have held that when the insured had not committed any wilful
infringement or violation of the terms and conditions of the policy, and unless it is established that the insured was at fault and was guilty of a
breach, the insurer cannot escape from its obligation to indemnify the insured. The other contention is that the learned Judge has committed an
error in coming to the conclusion that the injured and the deceased passengers were travelling in the lorry along with their merchandise and as such,
they were not covered under the terms and conditions of the policy covering the risk in question. Like the owner/appellant, the Insurance Company
has also raised various objections. Both the sides have, placed several decisions in support of their contentions. The Division Bench considered
almost all the cases on this aspect and most of the cases were cited before me as mentioned above. 35. While examining the liability to pay the
compensation by the Insurance Company, the Supreme Court has observed as follows:
Some of the aforesaid significant amendments introduced in the Motor Vehicles Act, 1939 and Motor Vehicles Act, 1988 have been referred to
above only to indicate that even Parliament is conscious that right to claim compensation by the claimants in connection with the motor vehicles
accidents should not be defeated on technical grounds.
The following observation of the latest Division Bench (1997) 1 1 W. 174 referred above is extracted hereunder:
In our opinion, the principles laid down by the Supreme Court in the aforesaid Sohan Lal Passi''s case would squarely apply to the case on hand.
In the instant case, the owner of the vehicle had appointed the licensed driver to the vehicle and the accident in question has taken place when the
vehicle was transporting goods. There is no evidence adduced by the insurer that the owner of the vehicle authorised or permitted the owners of
the goods which was being transported in the vehicle at the time of the accident, to travel in the transport vehicle-in-question, nor is there any
evidence to show that the driver was authorised to carry the owners of the goods along with the goods in the transport vehicle in question. There is
no evidence to infer that there was even an implied consent for doing it by the owner of the vehicle. There is also no evidence to show that with the
knowledge of the owner of the vehicle the owners of the goods were taken along with the goods in the vehicle. Further, it is also not proved that
they are the gratuitous passengers. Thus, it is a case in which the driver on his own accord appears to have allowed the owners of the goods to
travel in the transport vehicle along with their goods. There is no evidence to show that the owner of the vehicle wilfully allowed the transport
vehicle in question to be used for the purpose which was not allowed by the permit. "" ""Sohan lal Passi''s case was referred to a three judge Bench,
in the light of the stand taken by the Insurance Company that when Section 96(2)(b)(ii) has provided that the insurer shall be entitled to defend the
action on the ground that there has been breach of a specified condition to the policy i.e., the vehicle should not be driven by a person who is not
duly licensed, the Insurance Company cannot be held to be liable to indemnify the owner of the vehicle. On this point the view taken in Skandia
Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, was against the insurer. The relevant portion of the judgment in Skandia Insurance
Co. Ltd.,''s case is as follows:-""The defence built on the exclusion clause cartnot succeed for three reasons, viz., l. On a true interpretation of the
relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is
not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he
himself is not guilty of a deliberate breach.
Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the
licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.
The exclusion clause has to be ''read down'' in order that it is not at war with the ''main purpose'' of the provisions enacted for the protection of
victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise.
It was to examine the correctness of the aforesaid view as pointed out above, the Sohan Lal Passi''s case was referred'' to a larger Bench of three
Judges, in which it was held thus:
According to us, Section 96(2)(b)(ii) should not be interpreted in a technical manner. Sub-section (2) of Section 96 only enables the Insurance
Company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in Seb-section (2) including that there has
been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. This bar on the face of it operates
on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then
only that clause shall be attracted. In a case where the person who has got insured the vehicle with the Insurance Company, has appointed a duly
licensed driver and if the accident a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly
licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the Insurance Company in that event shall be
absolved from its liability. The expression ""breach"" occurring in Section 96(2)(b) means, infringement or violation of a promise or obligation. As
Such the Insurance Company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to
satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by
appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to
be driven by a person not duly licensed, then the Insurance Company cannot repudiate its statutory liability under Sub-section (1) of Section 96.
Therefore, it is clear from the rule laid down in Sohan Lal Passi''s case that the burden of proving the breach of condition of permit or the contract
of insurance by the insured is on the insurer, viz., the Insurance Company. In the instant case, that burden has not been discharged. Therefore, the
Insurance Company cannot absolve from its liability to pay the compensation to the claimants. In the view we take the contention of the learned
Counsel for the Insurance Company based on the exclusion clause contained in the contract of insurance has to fail.
After the decision of Kanniappa Nadar v. Jayapandi and 10 others (1997) 1 1 W. 174, Raju, J. had an occasion to consider similar issue in
C.M. As. Nos. 852 to 854 of 1987. The learned Judge has also considered various decisions of this Court as well as the Apex Court including the
decision of the Division Bench reported in (1997) 1 L.W. 174 cited supra. The conclusion the learned Judge which is very relevant for the disposal
of the present case is extracted hereunder:
... I am of the view of that difference in nature of claims depending upon the facts of each case, apart, the elucidation of the issue and clarification
and emphasis of the principles laid down in the earlier decision of the Supreme Court by their Lordships of the Apex Court who decided the case
reported in B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, leads to the inevitable conclusion that in dealing with
the assertion of an Insurance Company for being absolved of its liability, the provisions contained in Section 96 as also the clauses in any of the
Insurance Policy must be so read down to perpetuate the main purpose of the policy to indemnify the damage caused and to reimburse the injured
particularly when the claims of third parties are involved. The application of the principle of purposive construction and interpretation as ordained in
the latest pronouncement in the Supreme Court would overcome the difference in the nature of the claims being one relating to compensation
payable on account of the death or merely injuries sustained in an accident or the damage caused to the vehicle or property. In view of the latest
unreported decision of the First Bench of this Court (since reported in (1997) 1 L.W. 174 and the decisions of the Supreme Court noticed therein,
it has to be taken that the other line of decisions taking a contra view can no longer be a good or binding authority for the propositions proclaimed
therein. The latest pronouncement of the Division Bench it also very much binding on me, sitting as a single Judge.
As already stated, the Division Bench in (1997) 1 L.W. 174. and the learned single Judge in the above referred case namely C.M. As. Nos.
852 to 854 of 1987 dated 24.12.1996 have considered almost all the decisions applicable to the facts of the present cases, there is no need to
discuss once again in the present cases. Further, the Division Bench considered those cases and laid down a law which has also been explained
and follows by Raju, J. in the above referred unreported decision. Those two decisions referred above are very much binding on me. In those
circumstances, as already stated, except referring the latest Division Bench judgment and the unreported judgment of the learned single Judge, I am
not discussing each one of the decisions referred to by both sides.
Coming to the facts of the case in the earlier part of my order itself I have already narrated how the incident had taken place in all the four
cases. The claimants have also examined witnesses to speak about the occurrence as well as how the deceased/injured travelled in a goods vehicle
or which necessitated them to travel along with the goods in a goods vehicle. Apart from the specific pleadings the claimants have established their
case y letting in oral evidence which, according to me, after perusal is meritable. In the absence of any contra evidence from the side of the
insurance companies, the case pleaded by the claimants have to be accepted. In those circumstances, on the line of the conclusion reached by
Raju, J., in the above referred cases, I am of the view that the insurance companies cannot wriggle out of their liability. Hence in the light of legal
position referred above and uncontroverted facts available in all these cases, I am in entire agreement with the conclusion reached by the Tribunal.
For all the reasons stated above, I hereby confirm the conclusion arrived by the Tribunal with regard to liability of the Insurance Company.
Now I shall consider cross-objections filed in C.M.A. No. 504 of 1987 with regard to the disallowed claim. Even at the outset, Mr. R.
Vedanatham, learned Counsel for the appellant in C.M.A. No. 504 of 1987 raised an objection regarding maintainability of the present cross
appeal by the claimants. The said cross appeal has been filed under Order 41, Rule 22 of Code of Civil Procedure. According to the learned
Counsel for the appellant, in as much as the appellant Insurance Company has filed the present appeal only with regard to its liability, the present
cross objection claiming higher compensation against the owner of the vehicle who is one of the respondents in the appeal is not maintainable.
According to him, the appellant has nothing to do with the relief claimed in the cross objection and the cross objection is for claiming relief only
against one of the co-respondents. In those circumstance, according to him, the cross objection is not maintainable and liable to be dismissed. In
support of the above contention, Mr. Vedantham relied the following decisions:
(1) Pannalal Vs. State Bombay and Others, ; (2) Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, ; (3) Choudhary Sahu
(Dead) by Lrs Vs. State of Bihar, ; (4) National Insurance Co., Ltd., v. H.N. Rama Prasad 1985 A.C.J. 864; (5) Dyer Meakin Brewaries Ltd., v.
Bimia Gupta 1986 A.C.J. 334; (6) National Insurance Company Limited Vs. V. Vasantha and Others, , (7) Hindustan General Insurance Society
Ltd. now National Insurance Co. Ltd. Vs. Nilima Mahanta and Others, ; (8) United India Insurance Co., Ltd., Gobi v. Rajammal (1992) 2 L.W.
147 and (9) United India Insurance Co., Ltd., v. M.R. Subramanian (1995) 2 L.W. 360.
A leading judgment of the Apex Court in this regard is Pannalal Vs. State Bombay and Others, popularly known as Pannalal''s case. The
following conclusion of their Lordships of the Supreme Court in the above said case is useful for the disposal of the: present question and the same
is extracted hereunder:
In our opinion, the view that has now been accepted by all the High Court that Order 4., Rule 22 permits as a general rule, a respondent to prefer
an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an
objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the
question being reopened between the objecting respondent and other respondents, that an objection under Order 41, Rule 22 can be directed
against the other respondents, is correct. Whatever may have been the position under the old Section 561, the use of the word ""cross-objection"" in
Order 41, Rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As
Rajammannar, C.J. said in Vadlamudi Venkateswarlu and Another Vs. Ravipati Ramamma and Another, . ""The legislature by describing the
objection which could be taken by the respondent as a ""cross-objection"" must have deliberately adopted the view of the other High Courts, One
cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a
respondent. The cross objection must be an objection by a respondent against the appellant. "" We think, with respect, that these observations put
the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional
case as mentioned above an objection can be preferred by a respondent against a co-respondent is indicated by the substitution of the word
appellant"" in the third paragraph by the words ""the party who may be affected by such objection.
In Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, the Supreme Court after referring Order 41, Rule 22 as well as Rule
33 has observed thus:
The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the
appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the court to adjust the
rights of the parties. Whether in an appeal the court reaches a conclusion which is inconsistent with the opinion of the court appealed from and in
adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41, Rule
33 may properly be invoked. The rule however does not confer an unrestricted right to reopen decrees which have become final merely because
the appellate court does not agree with the opinion of the court appealed from.
In Choudhary Sahu (Dead) by Lrs Vs. State of Bihar, the Apex Court has held that on the strength of the first part of sub Clause (1) of Rule
22 of Order 41 the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds decided
against it. The Commissioner however, could not set aside the findings in favour of the appellant on the strength of Order 41, Rule 22(1). Nor was
the Commissioner empowered to do it by invoking Order 41, Rule 33, C.P.C., as the rule did not confer, an unrestricted right to reopen decrees
which had become final merely because the appellate court did not agree with the opinion of the court appellated from.
In Sumanbai v. State of Madhya Pradesh 1982 A.C.J. 513 the Division Bench of Madhya Pradesh High Court after following Pannalal Vs.
State Bombay and Others, has held that in the instant case the appeal by the insured is limited to its liability. As stated above, the Insurance
Company cannot question the quantum of compensation awarded. That being so, the question of quantum of compensation would not arise in an
appeal instituted by an insurer. Therefore, the cross objections in the above appeals are not tenable.
The very same view has been reiterated by the Divisional Bench of Allahabad High Court in Dyer Meakin Breweies Limited., v. Bimla Gupta
1986 A.C.J. 334.
In National Insurance Company Limited Vs. V. Vasantha and Others, the Division Bench of this Court has held as follows:
This is an appeal preferred by third respondent. The claimants have not preferred any appeal, against the dismissal of the claim, as against
respondents 1 and 2. In an appeal preferred by third respondent, on claimants being impleaded as respondents they cannot now ask for relief as
against respondents 1 and 2 who are impleaded as co-respondents 4 and 5 herein by invoking Order 41, Rule 33 of Civil Procedure Code. In
Madras Motor and General Insurance Co. Vs. Katanreddi Subbareddy and Others, relying upon a Full Bench decision of this Court in (Delhi)
Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, it was held as under:
It cannot therefore be contended that once the appeal reached the High Court all the provisions in C.P.C. applicable to appeals to the High Court
are automatically attached. "" When an appeal was preferred u/s 110-D of the Motor Vehicles Act, the above observation Was made. Therefore,
this Court would not in this appeal deal with a finding which has been arrived at as against respondents 1 and 2 before the Tribunal merely because
they are impleaded herein as respondents 4 and 5.
In Hindustan General Insurance Society Ltd. now National Insurance Co. Ltd. Vs. Nilima Mahanta and Others, a single Judge of Gauhati High
Court has held that the cross objection by the owner challenging the finding of negligence and compensation in an appeal by the Insurance
Company is not maintainable.
In United India Insurance Company Ltd., v. Rajammal and 8 others (1992) 2 L.W. 147 the Division bench of this Court has held that cross-
objections by the claimants seeking enhancement of award, in an appeal filed by Insurance Company pleading for restricting its liability to Rs.
50,000 are not maintainable.
In United India Insurance Co., Ltd., etc v. M.R. Subramanain and Anr. (1995) 2 L.W. 360 another Division Bench of this Court has also
taken the same view holding that in such situation cross objection is not maintainable.
Mr. V. Prabhakar, learned Counsel for the cross-objectors relying on Pannalal Vs. State Bombay and Others, vehemently contended that in
view of the law laid down by the Apex Court in the said decision it is open to one of the respondents to file cross appeal even though the appellant
has nothing to do with the cross appeal. In order to substantiate his contention, he has very much relied on the following passage of the Apex
Court:
In our opinion, the view that has now been accepted by all the High Courts that Order 41, Rule 22 permits as a general rule, a respondent to
prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in
such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the
question being reopened between the objecting respondent and other respondents, that an objection under Order 41, Rule 22 can be directed
against the other respondents, is correct. Whatever may have been the position under the old Section 561, the use of the word ""Cross-objection
on Order 41. Rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant.
According to him, the relief sought for in the cross objection is intermixed with the other respondents and the appellant, hence it is an exceptional
case as pointed out by the Supreme Court in the said Pannalal''s case, in those circumstance, it is open to the cross-objector to seek relief even in
this appeal. He also submitted that the above passage of the Supreme Court giving relief in a cross appeal filed under Order 41, Rule 22, more
particularly in view of Rule 33 the Division Benches of this Court holding cross appeal in an appeal filed by the Insurance Company questioning
merely its liability is not maintainable has not correctly decided. In other words, according to him, the earlier Division Benches have lost sight the
observation of the Apex Court in para 18 in Pannalal''s case. In the light of the objection raised by Mr. V. Prabhakar, I have carefully considered
the relevant provision namely Order 41, Rule 22 as well as Rule 33, C.P.C. I have also carefully studied the entire judgment of the Apex Court in
the Pannalal''s Case as well as the later Division Bench decisions of this Court. After analysis the same, I am unable to share the view expressed by
Mr. Prabhakar. In this regard, the following conclusion of the Division Bench decision reported in National Insurance Co. Ltd Vs. V. Vasantha
and Others, is relevant and the same is hereby extracted:
Mr. Santhanagopalan referred to the last sentence in para 12 of the award which reads. ""The claim against respondents 1 and 2 is dismissed
without costs.
This is an appeal preferred by third respondent. The claimants have not preferred any appeal against the dismissal of the claim, as against
respondents 1 and 2. In an appeal preferred by third respondent, on claimants being impleaded as respondent, they cannot now ask for relief as
against respondents 1 and 2 who are impleaded as co-respondents 4 and 5 herein by invoking. Order 41, Rule 33 of C.P.C. In Madras Motor
and General Insurance Co. Vs. Katanreddi Subbareddy and Others, , relying upon a Full Bench decision of this Court in (Delhi) Venkatarama
Doss Pantulu Vs. (Delhi) Bheema Rao, it was held as under:
It cannot therefore be contended that once the appeal reached the High Court all the provisions in C.P. C applicable to appeals to the High Court
are automatically attracted.
When an appeal was preferred u/s 110-D of the Motor Vehicles Act, the above observation was made. Therefore this Court would not, in this
appeal, deal with a finding which has been arrived at as against respondents 1 and 2 before the Tribunal, herein as respondents 4 and 5. "" 52. In
United India Insurance Co. Ltd., v. Rajammal and 8 others (1992) 2 L.W. 147 another Division Bench of this Court while considering the
maintainability of cross objection in such situation has concluded thus:-,
We may also particularly point out that the above said decision reported in State of Kerala v. Padmavathi 1983 A.C. J 707 relies on a decision of
a Full Bench of five Judges of this Court in Vadlamudi Venkateswarlu and Another Vs. Ravipati Ramamma and Another, . The relevant passage in
the above said Vadlamudi Venkateswarlu and Another Vs. Ravipati Ramamma and Another, is as follows:
One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a
respondent. The cross-objection must be an objection by a respondent against the appellant. "" Further, we find that the above said passage of the
Full Bench has also been approved by the Supreme Court in Pannalal Vs. State Bombay and Others, . After quoting the above said passage, the
Supreme Court, in the said decision observed as follows:
As early as in 1960 a Division Bench of this Court in Abubacker v. Abdulrahiman 1960 K.L.T. 348 had taken the view that memorandum of
cross-objections which is directed solely against co-respondents, not the appellants, is not, maintainable under Order 41, Rule 22. The law is
wellsettled that as a general rule a respondent can file a cross-objection only against an appellant, and it is only in exceptional cases where the
decree proceeds on a common ground or the interest of the appellant is intermixed with that of the respondent that respondent could be allowed to
urge a cross-objection against a corespondents (Emphasis supplied) The learned Counsel for the cross-objectors no doubt relied on the above
said Pannalal Vs. State Bombay and Others, and also Pannalal Vs. State Bombay and Others, deals with a different case and, therefore, the said.
decision cannot apply to the present facts. On the other hand, as we have already pointed out, the above referred to observation in Pannalal Vs.
State Bombay and Others, approving the above referred to passage of the Full Bench of this Court would squarely apply to the present case. The
above referred to 1983 TAC. 60 is distinguishable. The subject matter of the appeal therein by the Insurance Company was on the quantum of
compensation itself since the Insurance Company thereof in its appeal sought to fully exonerate it from its liability. The other decision cited by the
learned Counsel, viz., The Union Co-operative Insurance Society Ltd., Madras Vs. Lazarammal Ravel and Others, only says generally that cross
objection can be filed in Accident Claims cases also. Then (1992) 1 TAC. 117 dealing with the scope of Order 41, Rule 33, C.P.C., has no
application to the present case where the cross objection filed itself is not maintainable as stated above. Further the Supreme Court has clearly
explained the restrictive scope of Order 41, Rule 33, C.P.C. in Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, and
Choudhary Sahu (Dead) by Lrs Vs. State of Bihar,
The other Division Bench judgment which is against the cross-objector is reported in United India Insurance Co. Ltd., etc., v. M.R.
Subramanian and Anr. (1995) 2 L.W. 360. In the said decision, the learned Judges of the Division Bench have considered the earlier Division
Bench decision of this Court (1992) 2 L.W. 147 and the decision of the Supreme Court in Pannalal Vs. State Bombay and Others, and observed
thus:
A preliminary objection is taken by appellant as against the maintainability of the Memorandum of Cross-Objections. He points out that the appeal
is confined to the liability of the Insurance company and in that appeal the claimant cannot make a claim for enhancement, which is really directed
against the owner of the vehicle who is a co-respondent in the appeal. Such a question has been considered by the Division Bench of this Court in
United India Insurance Co., Ltd., Gobi v. Rajammal and 6 others (1992) 2 L.W. 147 and it was held that such a Memorandum of Cross-
objection is not maintainable and dismissed the same on the ground. We have gone through the judgment of Division Bench and we are entirely in
agreement with the reasoning contained in the judgment. The same is the view taken in Pannalal Vs. State Bombay and Others, . Following the said
judgment of the Division Bench we hold that the Memorandum of Cross objection is not maintainable. Hence, the Memorandum of cross objection
is dismissed. "" 54. The above referred 3 earlier Division Bench decisions of this Court clearly show that in an appeal filed by the Insurance
Company questioning only its liability it is not open to one of the respondents to claim any other relief more particularly higher compensation which
has nothing to do with the relief claimed by the appellant. The three Division Benches of this Court in the above referred decisions have taken the
said view. As a matter of fact, in the last decision of the Division Bench namely (1995) 2 L.W. 360 they have considered the decision of the Apex
Court in Pannalal Vs. State Bombay and Others, and ultimately rejected the cross objection as not maintainable. In those circumstance, it is not
possible for me to accept the argument of Mr. Prabhakar that the observation of the Supreme Court in Pannalal''s case in para 18 has not been
considered by any of the Division Bench on this aspect. I have already said the very same decision has been considered by the Division Bench and
rejected the crossappeal as not maintainable. I am also satisfied that the present claim in the cross appeal is not an exceptional case to take the aid
of Rule 33 apart from Order 41, Rule 22, C.P.C. Looking at any angle, I am not inclined to take a different view in the light of the binding
decisions of this Court referred above. Since the point in issue directly covered by three Division Bench decisions of this Court. I am not referring
the other decisions of various High Courts referred by the learned Counsel for the cross objectors. I am satisfied that in the present appeal namely
C.M.A. 304 of 1987 the appellant/Insurance Company has confined its liability only hence in the appeal the claimant cannot make a claim for
enhancement which is really directed against the owner of the vehicle who is co-respondent in the appeal. I am also of the same view expressed by
the three Division Benches of this Court referred above, and more over those decisions are binding on me. Under these circumstances, I hold that
the cross objection in C.M.A. No. 504 of 1987 is not maintainable.
Net result, I do not find any merit in all the appeals and the same are accordingly dismissed. No costs. Cross-objection in G.M.A. No. 504 of
1987 is also dismissed as not maintainable. No costs.