JAGDISH TRANSPORT COMPANY Vs. DHAVALU KAKDYA TAMBA

JUDGEMENT

(1.) THIS group of 8 appeals arose out of one accident and common questions are involved in all these appeals and therefore all these appeals have been heard together and are disposed of by this common judgment.

(2.) A truck bearing no. GTG-2769 owned by the present appellant in all the appeals and driven by Anwarmiya Amarmiya Shaikh was going on Bombay Ahmedabad High way on 14/6/1979. It stepped near hotel Charoti. 18 persons with their goods and baggage wanted to go from Vasai to Charoti. The cleaner of the aforesaid truck took all the 18 persons as passengers on hire with their goods @ Rs.3.00 per passenger and Rs.1.50 from each one of them for goods. Near Katkona village the truck was driven at the fast speed and it went off the road, dashed against guard stones and after uprooting them it fell down. As a result of that 15 persons died on the spot and three persons sustained injuries. The heirs of the deceased as well as the injured filed various claim petitions claiming compensation from the owner of the truck, driver of the truck as well as insurer of the truck. The owner of the truck appellant in all these appeals resisted the claim and set up the defence that driver was specifically ordered not to take any passenger on hire or reward and the act of the driver in allowing the persons on the goods vehicle as passengers on hire or reward was beyond the scope of his employment and the owner of the truck cannot be held liable. The owner and driver also denied that there was any rash and negligent act by the driver. The insurer resisted the claim by setting up the defence that though the goods truck GTG 2769 was insured with it but it was not covered by a permit to carry any passenger for hire or reward and condition no. 3 of the insurance policy excluded the use of the insured vehicle for carriage of any passenger for hire or reward. According to the insurer, the use of the goods truck at the time of the accident for carriage of passengers on hire or reward was in breach of the specific condition of the policy and, therefore, the insurer had no liability to indemnify the owner. By separate judgments in all the claim cases dated on the same evidence and facts, the Tribunal held the rash and negligent act of the driver of the truck. The tribunal also held that the insured was not liable since the passengers were carried on hire or reward in contravention of the terms of the insurance policy. An award was passed against the present appellants for different quantums.

(3.) MR . Trivedi, the learned counsel for the appellant has raised two fold contention in these appeals:- (i) that the driver was specifically ordered not to carry passengers for hire or reward in the goods vehicle and the act of the driver in carrying the passengers in the goods vehicle therefore was beyond the scope of employment and, therefore, for the unauthorised act of the driver the owner cannot be held vicariously liable and (ii) that the passengers volunteered themselves to travel in the goods vehicle and if they met with an accident, the owner cannot be held liable.