New India Assurance Co. Ltd. vs Gordhanbhai Ambalal Barot and Others

Shukla, J.—The appellant, the New India Assurance Co. Ltd., has challenged by this appeal the judgment and final order of the Motor Accidents Claims Tribunal No.1 ,Ahmedabad (Rural), Narol, dated March 26, 1979, whereby the learned Tribunal has directed the opponents to pay to respondent No. 1, original applicant, Gordhanbhai Ambalal Barot, a sum of Rs. 78,600 together with running interest thereon at 6 per cent. per annum from the date of the filling of the application till payment or realisation.

Mr. R. H. Mehta, the learned advocate for the appellant , raised before us a sole issue as to whether the liability of the appellant was not limited only to the extent of Rs. 50,000 and that if it was so, the Tribunal has erred in making it liable , along with other respondents , to the total extent of Rs. 78,600 with interest , etc. The submission of Mr. Mehta is that the Tribunal has erred in not recognising the concerned vehicle, bearing registration No. 2472, as a goods vehicle, as defined in section 2(8) of the Motor Vehicle Act, 1939 (hereinafter referred to as "the Act"), and in treating the same vehicle as covered under clause (c) of sub-section (2) of section 95 of the Act . Mr. Mehta cited before us the relevant section 2(8) of the Act, which relates to the defination of "goods vehicle". It runs as under :

" ''Goods Vehicles'' means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adopted when used for the carriage of goods soley or in addition to passengers;"

Mr. Mehta submitted that the vehicle in question was a goods vehicle meant for the carriage of goods, and as such the vehicle was covered by clause (a) of sub-section (2) of section 95 of the Act . The said section runs as under :

"Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any on accident up to the following limits, namely :-

(a) Where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen''s Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle."

This section has been amended by Act 47 of 1982 and the words "one lakh and fifty thousand rupees" have been substituted for the words "fifty thousand rupees" with effect from October 1, 1982. The submission of Mr. Mehta, therefore, is that the vehicle being a goods vehicle, the liability for the same was covered only to the tune of Rs. 50,000, as per sub-clause (a) of sub-section (2) of section 95 of the Act. He further submitted that there is no justification, therefore, for treating the vehicle as falling u/s 95(2)(c) of the Act. In order to sub-stantiate his argument, Mr. Mehta invited our attention to the evidence of Raghuvir Malaram (witness No. 3 for the applicant), exhibit 25. The witness has stated during the course of his evidence, "I saw both the hands of the applicant sandwiched between the ONGC trailer-vehicle and the tree". Mr. Mehta also referred us to the cross-examination of the said witness, wherein he has stated as under :

"There was a big machine on the trailer."

Mr. Mehta''s submission was that assuming that the vehicle was not a "goods vehicle", once the trailer is attached to it, which is used for carriage of goods, the vehicle becomes a goods vehicle. However, it is again required to be noticed that the evidence of Raghuvir Malaram is not the only evidence on the point. Shaikh Husein Sardarbhai (witness No. 2, Oil and Natural Gas Commission, and he has stated just to the contrary of what is stated by the aforesaid witness, Raghuvir Malaram. Shaikh Husen Sardarbhai has stated that he has been serving in opponent No. 2 Commission, as the driver of a cementing operator vehicle for the last about 14 years. In no uncertain terms, he has stated : "Goods cannot be loaded in such a vehicle. Normally, such a vehicle is driven on the road at a speed of 15 to 20 km.p.h. The front portion of the vehicle is 4 to 5'' wide and back portion is little less in width. This vehicle is used on the drilling site". In his cross- examination, he has stated : "The registration number of my vehicle is GTD 2472. There was no trailer fixed to the vehicle. The vehicle is a 10-wheel vehicle". It is pertinent to note that so far as this part of the evidence of Shaikh Husen is concerned, there is no cross- examination whatever made on behalf of the appellant. Shaikh Husen has thus categorically stated that goods could not be loaded in the vehicle, nor could a passenger be taken in the back part of such vehicle. He has also stated that there was no trailer fixed to the vehicle. He must know things better than Raghuvir Malaram, since he is in the nature of a chance witness, whereas Shaikh Husen is a driver of the vehicle concerned. There is no cross-examination of Shaikh Husen by the appellant-insurance company on whose shoulders in fact the burden of issue No. 4 is cast. Issue No. 4 runs thus :

"4. Whether the insurance company proves that its liability is limited ? If so, to that extent ?

Thus, the burden of proof is clearly on the insurance company to prove that its liability was limited and thus, it was its duty to further prove that the vehicle concerned was a good vehicle. No attempt whatever is made by the appellant-insurance company to discharge the onus of proving this issue.

We have also pursued the panchnama of the vehicle (exhibit 76). It is stated, inter alia, in the panchnama....It is pertinent to observe that there is no mention in the panchnama of any trailer attached to the vehicle. Further, it appears from the perusal of the panchnama that the vehicle had a pump fitted upon it. Thus, the relevant evidence leaves no manner of doubt that the vehicle was not a goods vehicle, and the conclusion reached by the Tribunal that the vehicle falls within clause (c) of sub-section (2) of section 95 of the Act is unassailable.

Mr. Mehta submitted that even if the machine was fitted upon the vehicle, it still remains a goods vehicle, and therefore, the vehicle is a goods vehicle. With respect, we are unable to agree with this interpretation put upon the term "goods vehicle" by Mr. Mehta. "goods vehicle" means any motor vehicle constructed or adapted for used for the carriage of goods solely or in addition to passengers. The goods, therefore, must be such goods which are put on the vehicle for their carriage, and if machinery is fixed on the vehicle in a sense that it becomes permanently attached to it, it would not be goods which should place the vehicle within the definition of "goods vehicle". Carriage of goods implies the loading of goods at one place and its unloading at its destination. If this is not so, and if the goods are in the nature of somethings permanently fitted or fixed on the vehicle, it would not satisfy the definition of a goods vehicle.

We wish to make it clear that it is only on the evidence of the driver of ONGC and the panchnama on record and in the absence of any other reliable evidence to the contrary that we have reached the conclusion that the vehicle involved in this incident was not a goods vehicle.

Since this was the only point canvassed before us and since we are not persuaded by the submissions made before us by Mr. Mehta, the appeal fails and is consequently dismissed.