Prakash Enterprises vs Sukaluram and Others

Goutam Bhaduri, J.—All the three appeals aware being tried and decided together as they are arising out of the same accident and similar facts are involved. In all the appeals, the award dated 20th September, 2007 is under challenge whereby three claim petitions bearing Nos. 81/2006, 82/2006 and 85/2006 were decided and by such award, the Insurance Company was exonerated to make good the award on the ground that there has been a breach of policy.

The present three appeals are by the owner of the offending vehicle on whom the liability has been fastened:

(i) M.A. (C) No. 1277/2008 is in respect of claim petition No. 82/2006 which was filed by Sukaluram, S/o. Mangluram and Swaroop Kumar for death of Gayabai. Sukaluram is the husband of the deceased Gayabai and Swaroop Kumar is the son. By such award, the amount of Rs. 1,75,000 was awarded.

(ii) M.A. (C) No. 1334/2008 is in respect of claim petition No. 85/2006, which was filed by Smt. Anmotin Bai and five others i.e. wife, three children and father and mother of the deceased Mansingh Yadav wherein an award of Rs. 3,55,000 was passed.

(iii) M.A. (C) No. 1335/2998 is against the award passed in claim case No. 81/2006 which was filed by Yogeshwari and two others, being wife and mother and father of the deceased namely Pawan Kumar Patel, whereby an award of Rs. 3,75,000 was passed.

(iv) The different appeals have been filed by the owner of the vehicle on whom the liability has been fastened by the learned Court below.

The brief facts of the case are that on 19th January, 2006, the vehicles Swaraj Majda bearing registration No. C.G. 05 ZB 0105 met with an accident. It was pleaded that in the said vehicle Mansingh (deceased in claim case No. 85/2006) and Pawan Kumar (deceased in claim case No. 81/2006) were travelling in a capacity of Hamal and were returning from village Kodobatar to Kurud. At the relevant time, the vehicle was being driven at a high speed and in rash and negligent manner by Panch Kumar, the driver of the offending vehicle, whereby he lost his control and dashed the tree. It was further stated that one of the deceased Gayabai who was standing and waiting at the place of incident was dashed by such vehicle whereby she also died. Subsequently, the dependent/legal heirs of the deceased namely Gayabai, Mansingh and Pawan Kumar have filed different claim petitions.

The learned Tribunal by a common order dated 20th September, 2007, passed an award of different amount, however, exonerated the Insurance Company from the liability on the premise that the vehicle which was a goods carrying vehicle was being used other than goods carrying and, as such, there was a breach of policy.

These appeals have been filed by the owner of the vehicle. No appeal has been filed by the claimants.

The learned Counsel appearing on behalf of the appellant/owner would submit that the pleadings in these cases were to the effect that Mansingh and Pawan Kumar Patel, two deceased were said to be travelling in the offending vehicle in capacity of Hamal. He would submit that this fact was not rebutted or have been called in question and, therefore, admittedly it should have been held that they were travelling as Hamal/Labour in the vehicle. He further submits that according to the policy though it was a goods carrying commercial vehicle, the seating capacity was shown to be five and the premium was also paid for legal liability for employee/driver. He would further submit that the deceased Mansingh and Pawan Kumar since were travelling as Hamal in the said vehicle, therefore, they were covered under the policy and the Insurance Company could not have been exonerated to pay the amount. He further submits that in case of Gayabai, it is stated that she was not travelling in the offending vehicle as she was standing outside and the offending vehicle had dashed her while she was waiting on the road and the accident was caused. Therefore, in any case, Gayabai should have been held to be a third party and the Insurance Company should have been held liable to make good the payment. He referred to the evidence adduced by NAW-1 and would submit that the witness of the Insurance Company itself had admitted the fact that at the time of accident, the deceased Mansingh was travelling as a Labour, therefore, the liability should have been fixed on the Insurance Company.

Per contra, the learned Counsel appearing on behalf of the Insurance Company would submit that there is no evidence on record that at the time of accident, the deceased Mansingh and Pawan Kumar were travelling in a capacity of Hamal. He stated that according to the policy it was a goods carrying commercial vehicle and, therefore, the passenger could not have travelled in such vehicle. He stated that according to the F.I.R., which is proved by the claimants, at the time of accident, 35 to 40 persons were travelling in the vehicle and coming back after attending some social functions. Therefore, he contended that the vehicle when met with accident was in use other than the purpose for which the policy was issued i.e., goods carriage. He, therefore, submits that the order of the Court below whereby it is held that there is a breach of policy is well merited, which do not call for any interference.

I have heard the learned Counsel appearing for the parties at length and perused the documents and evidence on record.

In all the three cases, the pleadings have been separately made. The claimant Yogeshwari, in respect of claim case No. 81/2006 has stated that when the accident happened at that time her husband, the deceased Pawan Kumar Patel was working as a Hamal with the non-applicant Prakash Enterprises. Similarly, in claim case No. 85/2006, the claimant Anmotin Bai has stated that at the time of accident her husband was working as Hamal/Labour with Prakash Enterprises. Differently, in claim case No. 82/2006, the claimant Sukaluram, the husband of the deceased Gayabai, had stated that at the time of accident her wife was waiting on the road and at that time she was hit by the offending vehicle. Admittedly, all these three witnesses were not present at the time of accident. The claimants have proved the F.I.R. which is marked as Ex. P-1. The F.I.R. would reveal that a report was made by one Nohar Ram Yadav on 19th January, 2006 at about 11 O''clock and the time of accident was 10 a.m. on the same day. According to such F.I.R., it was stated that the lodger along with other persons of the society had been to her sister''s place at Kodobatar and thereafter were returning to their home on such offending vehicle. It was further stated that at the time of accident, 35 to 40 persons were travelling in the vehicle which met with an accident. The witnesses who has proved the F.I.R. (Ex. P-1 were not cross-examined by the owner of the vehicle i.e., the appellant to rebut such fact. So according to such evidence, the vehicle at the time of accident was not used as a goods carrying vehicle.

One witness Mukesh Kumar Sahu (AW-2) examined on behalf of claimant who claimed to have seen the accident. According to his statement, he has stated that at the relevant time the offending vehicle Swaraj Majda which was being driven at a high speed could not controlled itself and dashed into a tree and thereafter turned turtle. This witness in the cross-examination has stated that at the time of accident the vehicle did not dashed any person who was standing on the road. Therefore, the averments of claim petition that deceased Gayabai was dashed while she was waiting on the road has been not proved by the claimant.

The Insurance Company has proved the policy as Ex. D-l. According to Ex. D-1 the seating capacity of vehicle was five and the legal liability of the employee/driver. The witness has stated the employee would mean with respect to the claim under Workmen''s Compensation Act. Though this witness in the cross-examination has stated that Mansingh was sitting in a capacity of Hamal, but has categorically stated that the employee was meant to be covered under the Workmen''s Compensation Act. Further, on examination of Ex. D-1 which shows that the policy was for goods carrying commercial vehicle. So according to the claimant himself who had proved the F.I.R. it is proved that at the relevant time the vehicle was being used to carry the passengers numbering into 30 to 40 of the village who were returning after attaining a social function. Therefore, in such situation, the vehicle cannot be said to have used for carrying goods.

On a closer reading of the expressions "goods vehicle", "public service vehicle", "state carrier" and "transport vehicle" occurring in Sections 2(8), 2(25), 2(29) and 2(33) of the old Act with the corresponding provisions i.e. Section 2(14), 2(35), 2(40) and 2(47) of the Act, it is clear that there are conceptual differences. The provisions read as follows:

Old Act--

"2(8) ''goods vehicle'' means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage goods solely or in addition to passengers."

"2(25) ''public service vehicle'' means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab contract carriage, and stage carriage."

"2(29) ''stage carriage'' means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey."

"2(33) ''transport vehicle'' means a public service vehicle or a goods vehicle:"

The Act (New Act)--

"2(14) ''goods carriage'' any motor vehicle constructed or adapted for use solely for the carriage of goods or any motor vehicle not to constructed or adapted when used for the carriage of goods."

"2(35) ''public service vehicles'' means any motor vehicles used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi cab a motorcar, contract and stage carriage:"

"2(40) ''stage carriage'' means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for (SIC) or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey."

"2(47) ''transport vehicle'' means a public services vehicle a goods carriage an education institution bus or a private service vehicle."

The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen''s Compensation Act, 1923 (in short "WC Act"). There is no reference to any passenger in "goods carriage".

Therefore, applying the principle on the existing facts, I am of the opinion that the award passed by the learned Court below wherein it has been held that there is a breach of policy cannot be faulted with. As a result, the appeals have no merit and is accordingly dismissed.