NATIONAL INSURANCE CO LTD Vs. KUNTALA SWAIN

JUDGEMENT

(1.) THIRTY to forty passengers boarded a mini truck bearing registration No. OSG 494 on 29.1.1983 at Kodala bus -stand on payment of fare. The owner was also present in the vehicle. It met with an accident by hitting a milestone and rolling down the road and toppling. That resulted in death of four persons and injuries to others. Eleven applications were filed before the Motor Accidents Claims Tribunal under Section 110 -A of the Motor Vehicles Act claiming compensation for the rashness and negligence of the driver in driving the vehicle. The insurer was impleaded as a party. MJC Nos. 81, 92 and 94 of 1983 related to death of persons and the rest for injuries. In MJC No. 94 of 1983 compensation was claimed for death of wife aged 30 years and daughter aged 1. In MJC No. 81 of 1983, son aged 20 years had died, the mother was the claimant and in MJC No. 92 of 1983, mother had died, son was the claimant. On the materials placed before the Tribunal, it held that the accident was due to rashness and negligence of the driver. But, in the absence of any material for the purpose of computing compensation, in each of the death cases it awarded a sum of Rs. 15,000/ - as compensation. In all injury cases except in MJC No. 88 of 1983, it awarded a compensation of Rs. 2,000/ -, but in MJC No. 88 of 1983 it awarded a compensation of Rs. 3,000/ -. The insurance company has preferred this appeal against the decision of the Tribunal challenging its liability when the persons injured and the persons who met their death were passengers taken on hire on the ground that it had no liability for the passengers taken on hire in a goods vehicle having regard to the provisions contained in the Motor Vehicles Act and in the absence of a permit, it would be contrary to the contract under which it had taken a liability and carriage of passengers was contrary to rules without a permit granted authorising the goods vehicle to carry passengers on hire. Four cross -objections have been filed, i.e., in Misc. Appeal Nos. 228, 232,234 and 235 of 1985. Those relate to three injury cases (M.A. Nos. 228,232 and 235 of 1985) and a death case (M.A. No. 234 of 1985). It has been urged in the injury cases that the amount of compensation was very low whereas in the death case it has been urged that the compensation of Rs. 15,000/ - for the death of wife aged 30 years and daughter aged 1 was grossly low and the Tribunal was in error in insisting on two applications for the death of the mother and the daughter.

(2.) THE counsel for the appellant has referred to a large number of decisions, but it is unnecessary for me to refer to them all as many of them have been considered by a Division Bench of Andhra Pradesh High Court in Oriental Fire and Genl. Ins. Co. Ltd. v. M. Bhanumathi 1990 ACJ 1043 (AP), where it has been held that having regard to the provisions contained in Rule 227 of the Andhra Pradesh Motor Vehicles Rules, in the absence of a permit authorising carriage of passengers on hire, the insurance company is not liable for the death of or bodily injury to passengers carried on hire in a goods vehicle.

(3.) THE learned Counsel for the claimants relied on the decisions in the cases of Bai Dahiben v. Jesingbhai Bijalbhtai 1984 ACJ 150 (Gujarat), Oriental Fire and Genl. Ins. Co. Ltd. v. Yusuf Musa Chandki 1986 ACJ 500 (Gujarat) and Badri Narain v. Chotu Ram 1986 ACJ 1062 (Rajasthan). I with respect do not agree with the view expressed in Bai Dahiben's case (supra) that unless the insurance company failed to prove that on the date of the contract the vehicle insured was expressly or implicitly not covered by a permit to carry any passenger for hire or reward, it was liable to bear the liability of the insured. The burden of proof is on the insured. Whether a vehicle had a permit or authorisation would be known to the owner. It cannot be expected of the insurance company to secure the said document. The primary liability is of the owner. If he wants to pass that on to the insurer, it is his obligation to produce the permit. Having regard to the provisions contained in Rules 95(e) and 95 -A, I with respect cannot accept the view expressed in Badri Narain's case (supra) wherein it has been held:.the legislature has not put any restriction regarding the use of any particular class of vehicle and the term is only 'vehicle'. No insurer is permitted by law to wriggle out of the statutory liability by putting any adverse condition in its policy. This view is also distinguishable having regard to the provisions contained in the Orissa Rules, referred to above. For the reasons I differ from the view expressed in Bai Dahiben's case (supra). I also differ from the view expressed by the Division Bench in Oriental Fire & Genl. Ins. Co. Ltd.'s case (supra) where the burden was cast on the insurer to bring on record the necessary permit by which it could have been shown that the goods vehicle in question was not permitted to carry in it any passengers.