BOMANJI RUSTOMJI GINWALA Vs. IBRAHIM VALI MASTER

JUDGEMENT

(1.) In this appeal filed by the claimant under sec. 110-D of the Motor Vehicles Act 1939 a short question regarding award of proper compensation for accidental damage caused to the car of the appellant arises for consideration of this court.

(2.) The claimant filed M.A.C. petition No. 12 of 1976 before the Motor Accident Claims Tribunal at Broach. In the said claim petition he contended that motor car bearing No. G.T.I. 5440 was owned by him. On 18/10/1975 at 7 p.m. his son Farokh Romanji Ginwala was driving the said motor car and was going from Mohmedpura side towards the railway station i. e. from west to east in Broach city. When his car was at a distance of 50 feet from a place popularly known as Panchfanas a tractor with a trowler trailer bearing No. GJN 8557 with a cultivator about 7* feet long attached at the back of the tractor was going from east to west. The claimant alleged that the tractor was driven with dazzling light and the cultivator attached at the back of the tractor was not in a fixed state but was moving to and fro along with the motion of the tractor and when the car driven by his son passed by the side of the tractor the pointed hook of the cultivator attached to the tractor dashed with the right side mudguard of the car and pierced through and through the right door of the car near the drivers seat on right side and in the process extensive damage was caused to the car. The case of the claimant is that no light was fixed on the cultivator and the cultivator was not in a fixed state but was moving to and fro with the movement of the tractor and was kept in such a projected position that it was never possible for the driver of the vehicle coming from the opposite direction either to notice the cultivator or the to and fro movement of the cultivator. Further contention of the claimant is that the tractor ought not to have been driven on the asphalt road with the cultivator attached to it in such a condition and that it was on account of the negligent act of driving of the tractor coupled with the further negligent act of keeping the cultivator in such a condition projecting on both the sides that the hook of the cultivator pierced the mudguard of the car and this type of rash and negligent driving of the tractor cultivator was responsible for the extensive damage caused to the car. The car had to be kept unused for 3-4 months during which period extensive repairs to the car were carried out at the cost of Rs 7 130 In the meanwhile the claimant 0 had to go without car and that caused considerable inconvenience and loss to him. He had to take on hire other vehicles for his business and other purposes. On that account further amount of Rs. 2 869 claimed by the claimant. Thus in all Rs 9999/-were claimed from the present respondents who were the driver of the offending tractor insurance company which had insured the said tractor against third party risk the owner of the tractor and the Gujarat State Land Development Bank Limited with which the tractor was placed under an agreement of hire purchase. As the claim petition has been totally rejected by the Tribunal the claimant has approached this court for award of damages on account of accidental damage caused to his car.

(3.) Insurers liability :- That takes me to the last question involved in this appeal and that pertains to the liability of the insurance company original opponent No. 2 present respondent No. 2 to satisfy the claim awarded to the claimant. Mr. B K. Amin learned Advocate for respondent No. 2 put forward two contentions which according to him were good enough to enable the insurance company to escape its liability to meet the claim of the claimant. The first contention of Mr. Amin was that the insurance company was exonerated for the simple reason that the driver of the tractor which was insured with the insurance company had committed breaches of statutory rules under the Motor Vehicles Act while driving the insured vehicle. So far as the aforesaid contention was concerned he heavily relied on the claimants own contentions before the Tribunal as well as before this court in that behalf. While considering the question of negligence of the respective drivers of the Vehicles I have already discussed in details regarding non observance of the statutory rules by the driver of the tractor at the relevant time. It has been clearly found from the record of this case that the tractor driver by committing complete breach of the relevant statutory rules had driven the tractor in a rash and negligent manner at the relevant time. Even though rule 264(2) of the Rules enjoined upon him to drive the tractor as far as possible on the sidestrip of the metalled road the driver observed the said rule in breach and drove it in the middle of the tar road. He had also committed violation of Rule 266 regarding projection of loads especially Rule 266(3). But the further question remains as to whether the insurance company can seek any assistance from the aforesaid established breaches of statutory rules as committed by the driver of the insured vehicle in order to escape its liability to answer the claim of third parties like the present claimant. It is now well settled that mere breach of statutory rules on the part of the driver of the insured vehicle would not automatically enable the insurance company to escape its liability to answer the claim of third parties as enjoined by the provisions of Rules 95 and 96 of the Rules. It is also well settled that under section 96(2) of the Act the insurance company has got limited defences. The insurance company can resist the claim of third party claimant if it can show that there has been breach of specific conditions of policy being one of the conditions expressly mentioned in section 96(2)(b)(i) to (iii). Mr. Amin for the insurance company fairly stated that breaches of statutory rules which the driver of the offending tractor committed do not fall within any of the specified conditions as mentioned in section 96(2)(b)(i) to (iii). In the case of British India Gen. Ins. Co. v. Captain Ithar Singh and Others reported in A.I.R. 1959 S. C. 1331 the legal position is well settled by the Supreme Court as under :