Bombay High Court
Lahu Lakma Bije vs Kirtikumar Dayalji Kothari & Anr on 19 December, 2009
Bench: Nishita Mhatre
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vss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.638 OF 1993
Lahu Lakma Bije ... Appellant
V/s.
Kirtikumar Dayalji Kothari & Anr. ... Respondents
a/w
FIRST APPEAL NO.639 OF 1993
Lahu Lakma Bije
V/s.
ig ... Appellant
Kirtikumar Dayalji Kothari & anr. ... Respondents
a/w
FIRST APPEAL NO.640 OF 1993
Lahu Lakma Bije ... Appellant
V/s.
Kirtikumar Dayalji Kothari & anr. ... Respondents
a/w
FIRST APPEAL NO.641 OF 1993
Lahu Lakma Bije ... Appellant
V/s.
Kirtikumar Dayalji Kothari & anr. ... Respondents
a/w
FIRST APPEAL NO.642 OF 1993
Devu Buthia Bhurkud ... Appellant
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V/s.
Kirtikumar Dayalji Kothari & anr. ... Respondents
a/w
FIRST APPEAL NO.643 OF 1993
Devu Buthia Bhurkud ... Appellant
V/s.
Kirtikumar Dayalji Kothari & anr. ... Respondents
a/w
FIRST APPEAL NO.644 OF 1993
Gangaram Kadadia Kharpade
ig ... Appellant
V/s.
Kirtikumar Dayalji Kothari & anr. ... Respondents
a/w
FIRST APPEAL NO.645 OF 1993
Janibai Vajia Uradia ... Appellant
V/s.
Kirtikumar Dayalji Kothari & anr. ... Respondents
AND
FIRST APPEAL NO.647 OF 1993
Jifribai Raoji ... Appellant
V/s.
Kirtikumar Dayalji Kothari & anr. ... Respondents
Mr.T.J Mendon for Appellants
Mr.M.S. Karnik for Respondent No.1
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CORAM: SMT.NISHITA MHATRE, J.
JUDGEMENT RESERVED ON: OCTOBER 24, 2009
JUDGEMENT DELIVERED ON: DECEMBER 19, 2009
JUDGEMENT:
1. These First Appeals challenge the common award of the Motor Accident
Claims Tribunal, Thane in Motor Accident Claim Application Nos.398 to 406 of 1983.
The Tribunal has dismissed the claim applications on the ground that the insurance
company was not liable to pay compensation.
2.
The facts giving rise to the present appeals as under:
A group of labourers alongwith their children boarded a motor truck No.MWT 2994
owned by Respondent No.1 on 20.21983. At about 2 pm near Village Narangi,
Taluka Dahanu, they loaded the truck with their cooking utensils, firewood and
clothes tied in gunny bags and/or bundles. They were proceeding to a brick kiln
where they were assured of work. When the aforesaid truck stopped at Virar Phata,
the driver of the truck enquired with them whether they wanted a lift in his truck.
Accordingly, all the labourers boarded the truck. The driver charged them Rs.1.50/-
for the luggage of each labourer and Rs.1.50 per passenger. The truck was already
loaded with cement bags. Near Narangi village the driver of the truck lost control of
the vehicle as a result of which the truck overturned. Six persons died on the spot in
the accident. Three others sustained severe injuries. Four of the deceased
belonged to one family and two from another. The claimants before the Tribunal
were either the legal representatives of the deceased or the victims of the accident
themselves. It was contended by the claimants that the accident had occurred due to
the gross negligence on the part of the driver of truck.
3. Motor Accident Claim Application Nos.398, 399, 400, 401 of 1983 were filed
by one Lahu Lakma Bije claiming compensation for the death of his wife, minor son
Sitaram, minor daughter Nimoni and minor daughter Sunder respectively. The
compensation claimed was Rs.50,000/-, Rs.35,000/-, Rs.30,000/- and Rs.20,000/-
respectively. Devu Buthai Bhurkud is the claimant in respect of MAC No.402 of 1983
and 403 of 1983 claiming compensation for the death of his sons Madhya and Sadya
of Rs.30,000/- and Rs.25,000/- respectively. The claimants in the other applications
are the victims, who survived the accident.
4. The Tribunal after considering the evidence on record concluded that the
applicants had proved that the accident occurred on 20.2.1983 as a consequence of
the rash and negligent driving of the driver of truck No.MWT-2994 in which the
deceased and the victims were travelling. However, the Tribunal did not grant any
compensation as the insurance company proved that the insurance policy had been
breached. It was held that passengers were carried for hire or reward in the truck
which was a goods carrier and therefore the insurance company was not liable to pay
any insurance. Although no issue was framed as to whether the owner was liable it
was held that there was no evidence to indicate that the owner had expressly
authorised the driver to ferry passengers in his truck for hire or reward. The Tribunal
relied on the judgment of the Division Bench of this Court in the case of Maimuna
Begum Abdul Razzaque & Ors. v/s. Taju Ahmed Khan & Ors., 1989 Mh.L.J. 352.
5. The learned advocate for the appellants submits that the judgment of the
Tribunal is contrary to the judgments of the Supreme Court in the case of New India
Assurance Limited v/s. Asha Rani & Ors., 2003 (Vol. 1) ACJ 1 and in the case of
National Insurance Co. Ltd. v. Chholleti Bharatamma & Ors., 2008 ACJ 268. He also
relies on the judgement of the Division Bench of this Court in the case of Nasibdar
Suba Fakir vs. Adhia & Co. & Ors., 1983 Mh.L.J. 647 to contend that the insurance
company would be liable for payment of compensation when a person travels in a
goods vehicle as the owner of the goods.
6. Mr.Karnik, appearing for Respondent No.1, the owner of the truck, submits
that the Tribunal has committed no error in concluding that the deceased and the
victims were travelling without permission from the owner of the truck. He submits
that there was no evidence on record indicating that the owner had at any point of
time given permission to his driver to ferry passengers in the goods vehicle. In such
circumstances, submits Mr.Karnik, the passengers travelling in a goods vehicle are
not entitled to compensation from the owner of the truck. He submits that once it has
been held that there is a breach of the insurance policy on account of the fact that the
passengers were illegally travelling in the truck, the owner also cannot be vicariously
liable for any act of the driver.
7. Before adverting to the law, it would be necessary first to consider the facts in
the present case. Undoubtedly, the claimants and the victims were travelling in a
goods vehicle. Their contention that they paid Rs.1.50 per head to the driver for
travelling in vehicle besides paying Rs.1.50 per article of luggage has not been
controverted by the respondents since the driver has not been examined. The driver
was a party to the application and he was later deleted from the array of parties. The
goods with which the deceased/claimants were travelling were their personal
belongings besides firewood. Admittedly, the goods vehicle had not been hired by
these persons. They boarded the vehicle in order to travel from Vasai phata to the
brick kiln on which they were to get employment. Thus, they had not hired the
vehicle to carry their goods but instead were travelling by the vehicle as passengers.
Undoubtedly, they had luggage with them but these were personal belongings and
could not be termed as goods. Thus, it cannot be said as sought to be submitted on
behalf of the appellants that they were travelling in the vehicle which was a goods
vehicle as owners of the goods. There is evidence on record to indicate that the
vehicle was transporting cement bags which admittedly were not being transported
for and on behalf of the deceased/victims. All the judgments cited by the learned
advocate for the appellants do not in any manner support his cause. In the case of
New India Assurance Co. Ltd. v/s. Asha Rani & Ors., 2003 ACJ 1, the Supreme
Court has held that it was not necessary for the insurer to insure against the owner of
the case or his authorised representative being carried out in the vehicle under the
Motor Vehicles Act of 1939. After the amendment of 1994, the expression "including
owner of the goods or his authorised representative carried in the vehicle" which was
added to the preexisting expression "injury to any person" could not be said to either
clarify or amplify the pre-existing statute. The amendment in fact according to the
Supreme Court demonstrates that the Legislature wanted to bring within the sweep
of section 147, the compulsion for the insurer to insure even in case of goods vehicle
the owners of the goods or his authorised representative being carried in a goods
vehicle.
8. The proviso to section 95(i) stipulates that an insurance policy shall not be
required to cover the liability in respect of death of an employee except under the
Workmen's Compensation Act when such an employee is engaged for driving the
vehicle or if it is a public service vehicle and the employee is the conductor or if it is a
goods vehicle and the employee is being carried in that vehicle. However, the proviso
further stipulates that a policy shall not be required except where the vehicle is one in
which the passengers are carried for hire or reward by reason or in pursuance of any
contract of employment to cover liability in respect of the death or bodily injury to
persons being carried in the vehicle.
9.
The learned advocate for the appellants attempted to submit that the present
case would be covered by the proviso to section 95(1) of the Act of 1939. However,
in my opinion, neither the claimants nor the deceased would fall within the
parameters of the proviso, because they were not employees of the person who had
hired the vehicle nor were they being carried pursuant to the contract of employment
for hire or reward. Admittedly, the vehicle in question was a goods vehicle. The
passengers had travelled in the vehicle, presumably after requesting the driver of the
vehicle. Even if the contention of the appellants is accepted that they had paid the
driver of the vehicle for ferrying themselves as well as their luggage, in my opinion,
the insurance company would not be liable since there was no need for the insurance
company to cover such contingencies. However, in my view, the owner of the vehicle
would certainly be liable in the facts and circumstance of the present case. The
driver has not been examined as stated earlier. Therefore, it must be accepted that
the driver had permitted the claimants/deceased to travel in the vehicle and had
charged each of them an amount. It must also be accepted that the driver had
charged them an amount for carrying their personal effects and, therefore, the owner
of the vehicle would certainly be vicariously liable as there was no contrary evidence
on record.
10. Accordingly, the judgments cited at the bar regarding the liability of the
insurance company where passengers travel in a a goods vehicle are not applicable
in the present case. Those judgments were in respect of the situations in which the
owner or the representative of the owner of the goods travels in the goods vehicle
hired by the owner of the goods. When a vehicle meets with an accident while
transporting both the goods, as well as the owner of the goods or his representative,
as the case may be, the Courts have held that the insurance company would
certainly be liable under the 1939 Act. As stated earlier the goods vehicle in the
present case was hired by a third person to transport his goods. The vehicle stopped
en route and the driver accepted the victims as passengers. The goods which the
claimants/deceased were transporting were their personal belongings which they
were carrying with them. In my opinion, the insurance company cannot be held to be
liable in such a situation and the Tribunal has rightly dismissed the claim against the
insurance company. However, the Tribunal has erred in dismissing the applications
against the owner.
11. Accordingly, the appeals are partly allowed. The applicants are remanded to
the Tribunal to decide the qunatum of compensation payable by the owner of the
motor truck No.MWT-2994. The Tribunal will decide the claims within six months
from today.
