UNITED INDIA INSURANCE COMPANY LIMITED Vs. ZUMIBAI

JUDGEMENT

(1.) I am little unhappy about the fact that I am required to allow both these appeals filed by the Insurance Company disowning its liability towards the applicants under the Motor Vehicles Act.

(2.) The two appeals arise out of the two applications filed by the heirs of the two victims, who died in an accident which took place on 14th June, 1980. Admittedly, the vehicle was a good vehicle, hired by the Government of India. Original Opponent No. 1 was the owner of the vehicle. The United India Insurance Company was the original Opponent No. 2. The vehicle was taken on hire by the Government for carrying of goods. It appears that since some work was being carried on near the Aner Dam, some person clambered into the truck. It is a finding recorded by the Court below, incapable of being interfered with having regard to the nature of the evidence, that all these persons were gratuitous passengers. The truck driver allowed them to clamber into the truck. Some of them sat in the drivers cabin near the driver and others sat upon the heap of goods lying in the back portion of the truck. Out of those gratuitous passengers, we are concerned with two persons, one Vasaram Vanjari and the other Narayan Bhoi. While the truck was on its way, it turned turtle for some reasons. It is un-necessary for us to examine the reasons for the accident. It is the fact found by the Court below that this accident was the result of the negligence on the part of the driver of the vehicle and on that account a decree for Rs. 33,000/- has been passed by the Court below in each of the applications, which will be presently referred to. The owner of the vehicle has not filed any appeal against that part of the decree. Even in the present two appeals filed by the Insurance Company, apart from the question whether the Insurance Company can agitate the question of the owners liability or not, the question owners liability has not been agitated by the Company. We therefore proceed upon the finding that because of the negligence of the driver, the truck met with the accident. The point is that in that accident whereas some passengers were injured, the above mentioned two gratuitous passengers, Vasaram Vanjari and Narayan Bhoi died almost instantaneously. The heirs of these two persons therefore, filed two separate applications against the owner of the vehicle, Original Opponent No. 1, and against the Insurance Company, Original Opponent No. 2, for a sum of Rs. 50,000/- in each of the applications. The application was for recovery of the said amount from the owner as well as from the Insurance Company.

(3.) Since the owner has not filed appeal against the decree passed against him, it is unnecessary to refer to his defence in his Written Statement. The Insurance Company raised various defences. But we need not go even into all those defences. The only defence relevant for the purpose of the appeal was and is that the two persons who died were gratuitous passengers in the vehicle which was merely a goods vehicle. It was not a passenger vehicle carrying passengers for hire or reward. Section 95, therefore, did not make it compulsory for the policy of Insurance to insure the owners liability vis-a-vis such gratuitous passengers. As a part of this contention, it was further urged that not only that the statute did not require the policy to insure, such liability towards gratuitous passengers travelling by goods vehicle, but the policy in fact did not contain any clause insuring the owners liability towards such gratuitous passengers travelling by the goods vehicle. The Insurance Company, therefore, totally disowned its liability towards the applicants.