The New India Assurance Co. Ltd. vs Rambahadursingh Ghandrapaisingh Rajput and Others

D.C. Gheewala, J.—The present appeal is directed against the award passed by the learned Motor Accident Claims Tribunal, Kaira at Nadiad in Motor Accident Claim Petition No. 100 of 1982 which was decided along with so many others by a consolidated judgment. The respondent No. 1 claimant filed the said petition and urged that on 24-10-1983, he was travelling in truck No. GTG 4321 driven by opponent No. 1 and it was owned by respondent No. 3. The truck was being driven at an excessive speed and while it was being driven and it came near Vanakbori Thermal power station, the truck capsized. The applicant along with so many others was injured. The applicant averred that he had sustained permanent disability. He, therefore, filed a claim petition claiming compensation of Rs. 1,00,000/-. The claim petition of course was resisted on various grounds by the driver, owner and the Insurance Co. But the learned Tribunal on appreciation of evidence came to the conclusion that the truck was being driven rashly and negligently and the respondent No. 1 had received injuries on account of rash and negligent driving of the truck by respondent No. 2. As respondent No. 3 was driving the truck in the course of his employment for respondent No. 3, respondent No. 3 was made vicariously responsible and as the truck was insured with the appellant the Insurance Co. The Insurance Company was held liable for indemnifying respondent No. 3 The Tribunal on appreciation of evidence came to the conclusion that respondent No. 1 would be entitled to claim Rs. 65,408/- by way of compensation and for the above amount, the appellant Insurance Co. was held responsible along with the driver and the owner of the truck.

Being aggrieved by the said order, the Insurance Co. has carried the matter before us by way of this present appeal.

Mr. Soparkar, the learned advocate appearing for the appellant Insurance Co. raised before us three contentions for our considerations:

(i) As the evidence regarding the respondent being carried with his luggage is so sketchy the Tribunal ought to have held that he was a gratuitous passenger and hence no liability could have been saddled on the Insurance Co.

(ii) The vehicle was not carrying permit for being used as a vehicle for transporting passengers and as such also no liability could have been saddled on the Insurance Co.

(iii) In any event, the policy with covered the said truck was an act policy and under those circumstances, the Insurance Co. could not have been made liable for anything more than Rs. 50,000/- as its liability under the policy and the act would be limited to the said amount.

At the out-set it must be stated that the first two contentions raised by Mr. Soparkar are required to be stated only for being rejected inasmuch as the applicant''s evidence indicates that he had some luggage with him which he had placed in the truck and he had paid an amount of Rs 4/- to the driver for the said purpose. He was cross-examined on that particular point, but nothing sustainable has been taken out in the said cross-examination which might go to dislodge his evidence. No evidence to the contrary has been adduced. Neither the driver, nor the conductor of the said truck has been examined by the opponent and as such there is no reason for us to discard the evidence of the applicant on this point. The Tribunal''s acceptance of the said evidence to our mind was certainly justified.

The second contention regarding there being no permit for carrying passengers for hire or reward it can be stated that the permit could have been got produced but it has not been so got produced and under the circumstances, following full bench judgment reported at 23 (1) GLR 411, we are constrained to hold that production of the permit cannot be allowed to go against the claimant. Having dealt with the first two contentions raised by Mr. Soparkar, we now proceed to deal with the third contention raised by Mr. Soparkar and here it must be stated at the out-set that Mr. Soparkar is trading a surer ground for getting the liability of the Insurance Co. restricted to an amount of Rs. 50,000/-. It may be noted that no such contention was raised before the Tribunal. None has raised in the memo of the appeal. But Mr. Soparkar sought permission to amend the memo and the said permission has been granted and accordingly, now the memo contains that contention raised by Mr. Soparkar for the first time. We would have been chaggrined to allow Mr. Soparkar to raise this contention for the first time before this Court but for the fact that the question is an important question of law and centers round interpretation of the terms and conditions of the policy. As no such contention was raised before the Tribunal, we are deprived of the benefit of Tribunal''s reasoning on that point. Further, the policy is very much on the record at Exh. 65. The policy does contain a Clause that liability for personal injury would be to the extent of Rs. 50,000/-. However, that liability is pertaining to the injuries to third parties on account of the use of the said vehicle. General exception contained in the policy restricts the use of the vehicle, for certain purpose and purpose for which the vehicle was covered, does not include carrying passengers for hire and reward. In any case, respondent No. 1 who was carried in the said truck was not a third party and as such the insurance Co. cannot be held responsible for any amount in excess of Rs. 50,000/- for injuries sustained by respondent No. 1. The act policy limits the liability of the Insurance Co. to an amount of Rs. 50,000/-. Under these circumstances, we feel that the third contention raised by Mr. Soparkar requires to be accepted and the liability of the Insurance Co. requires to be restricted to Rs. 50,000/- which was its liability under the policy and under the act.

The net result of the above discussion is that the appeal is partly allowed and the Insurance Co. namely, the appellant shall be liable to make good the amount of Rs. 50,000/- with proportionate costs and interest thereon out of the total amount of Rs. 65,408/- awarded by the Tribunal. For the remaining amount, respondent Nos. 2 and 3 shall be liable. The Insurance Co. has already deposited the said amount of Rs. 50,000/- and the insurance Co. is directed to deposit the proportionate costs and interest on the above amount within a period of six weeks from today, if they have so far not deposited the said amount. There shall be no order as to costs.