NEW INDIA ASSURANCE COMPANY LIMITED Vs. JAYABEN NARANAGAR

JUDGEMENT

(1.) All these seven appeals are directed against the common judgment and decree dated 30.09.1986 passed by the Motor Accident Claims Tribunal (Aux.),Junagadh in Motor Accident Claim Petition Nos. 351 to 354 of 1982 and Motor Accident Claim Petitions Nos. 16, 17 and 43 of 1983. It may be mentioned that the Motor Accident Claim Petition No.352 of 1982 was also decided by the very same judgment but was disposed of without any order as the same was withdrawn unconditionally as mentioned in the body of the order itself. The above numbered Motor Accident Claim Petitions were filed under section 110A of the Motor Vehicles Act, in relation to accident which took place on 30.08.1982 at 9.00 a.m. near village Bokhira on the road between Kachhudi and Porbandar. The motor vehicle involved in this accident is a public carrier bearing registration no. 5460 owned by M/s. Tata Chemicals Limited, Mithapur and was being driven by one Mer Uga Ghela who was employed by M/s.Tata Chemicals as driver of the said vehicle. The vehicle in question was insured with New India Assurance Company Limited i.e. the appellant herein in all these seven appeals. In Claim Petitions No. 351, 352 and 354 of 1982 and Claim Petitions No. 16 and 17 of 1983 the claimants are legal representatives and dependants of the victims who died as a result of injuries sustained in the said accident whereas the claimants in Claim Petition Nos.252/82 and 42/83 are the victims as injured persons in this accident. The deceased as well as persons injured in this accident were travelling by the said motor vehicle. The claimants have come with the allegation that it was a case of rash and negligent driving of the said vehicle and on account of such rash and negligent driving the accident occurred resulting into the death in relation to five claim petitions and injuries in case of two claim petitions as above. The driver was sought to be held liable as a wrong doer. The owner was sought to be liable as the owner of the motor vehicle as also the employer of the driver and the insurance company was to indemnify its insured as insurer of the motor vehicle in question. On behalf of the claimants the amounts claimed before the Motor Accident Claims Tribunal is as under : Claim Petition No. 351/82 Rs.1,00,000/- Claim Petition No. 352/82 Rs.1,00,000/- Claim Petition No. 353/82 Rs. 75,000/- Claim Petition No. 354/82 Rs.1,00,000/- Claim Petition No. 16/83 Rs.1,25,000/- Claim Petition No. 17/83 Rs.1,25,000/- Claim Petition No. 42/83 Rs.1,00,000/- The driver and the owner filed a joint written statement seeking to travers the claim of the claimants whereas the insurance company filed its separate written statement. The driver and the owner of the vehicle did not contest the factum of the accident nor did they dispute that the motor vehicle in question was being driven by the driver who was an employee of the owner of the vehicle. The vehicle was owned by M/s.Tata Chemicals Ltd., however, the allegation of rash and negligent driving has been denied and the amount claimed has been disputed by pleading that the claim was highly exaggerated and thus the liability has been sought to be disowned. The insurance company denied the factum of insurance in the first instance at the relevant point of time and in the alternative, it was pleaded that it was not liable because the driver was not holding any valid licence. The plea was also taken that the vehicle in question was a goods vehicle and the victims of the accident were unauthorised passengers travelling by the vehicle and therefore the insurance company was not liable to indemnify the insured. It appears that during the pendency of the claim, the Shakti Transport Company, Adityana was also impleaded as opponent no.7. It is the case of M/s.Tata Chemiclas that it had given this vehicle on contract to Shakti Transport Company for carryingout its work. Shakti Transport Company also took the stand that it was working as contractor of M/s.Tata Chemicals and that it was carrying the labourers of M/s.Tata Chemicals by the said motor vehicle for the work of M/s.Tata Chemicals. On this aspect it was contended by Shakti Transport Company that as the accident had occurred while working as contractor of M/s.Tata Chemicals it was not liable to pay any amount by way of compensation. In the alternative, it was pleaded that the insurance company being the insurer of the vehicle M/s.Tata Chemicals was liable to indemnify.

(2.) On the basis of the pleadings of the parties the issues were framed as under and the answers were recorded by the Motor Accident Claims Tribunal as mentioned against each of the issues to the following effect :

(3.) The order was passed accordingly as mentioned in the body of the impugned order under the heading of each one of the claim petitions. The insurance company has come in appeal before this Court under section 110D of the Motor Vehicles Act. On behalf of the insurance company - the appellant in each of these appeals it has been argued by Mr.A.R.Mehta that the vehicle in question was admittedly a goods vehicle and the deceased as well as victims of this accident were unauthorised passengers in the said vehicle and according to latest decision rendered by the Supreme Court in case of Mallawwa Vs. Oriental Insurance Company Ltd.,AIR 1999 SC 589, the insurance company cannot be held to be liable for the death or the injuries sustained by the unauthorised passengers in a goods vehicle. In the aforesaid decision, after considering the provisions of section 95 of the Motor Vehicles Act and the liability of the insured thereunder, the Spreme Court has held in para 10 of the judgement that ordinarily the vehicle in question could be regarded as a vehicle carrying passengers, if the vehicle was of that class. Keeping in mind the classification of vehicles under the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasion of that vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like provisio (ii) to Section 95(1)(b), the correct test to determine whether a passenger was carried for hire or reward would be whether there has been systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. Thus to find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature the mere fact that the passenger was carried for hire or reward would not be enough and it shall have to be found out as to whether he was the owner of the goods or an employee of such an owner, and then whether there were more than six persons in all in the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy. Mr.Mehta has therefore submitted that in no case the insurance company can be held to be liable to indemnify the claimants in the facts of the present case and the Tribunal has committed an error in holding that all the opponents including the insurance company were jointly and severally liable to pay the compensation to the claimants.