IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 1540 of 1983 For Approval and Signature: Hon'ble MR.JUSTICE Y.B.BHATT and MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? : Yes 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 5. Whether it is to be circulated to the Civil Judge? : NO 2 to 5 NO JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ -------------------------------------------------------------- MADHUBEN JAYANTILAL PATEL Versus GIHUBHAI BABAJI THAKORE -------------------------------------------------------------- Appearance: MR SURESH M SHAH for Petitioners MR A M Kapadia for Mr SB VAKIL for Respondent No. 1, 3 NOTICE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE Y.B.BHATT and MR.JUSTICE D.P.BUCH Date of decision: 25/11/1999 C.A.V. JUDGMENT (Per D P Buch, J.) 1. This is an appeal by the original claimants against the judgment and award dated 28.2.1983 recorded by the learned Motor Accident Claims Tribunal (Main), Narol in Motor Accident Claim Petition No.607/80 whereby the learned Tribunal was pleased to award compensation to the claimants in a sum of Rs.1,50,000/-. However, the learned Tribunal was pleased to clarify that the limits of liability of the Insurance Company shall be Rs. 10,000/-. The learned Tribunal was also pleased to award interest at the rate of 6% per annum from the date of petition till the date of payment together with costs of the litigation. 2. The facts may be briefly stated as follows: The deceased Jayantilal B Patel was proceeding in a jeep car bearing No.GRS 4428 along with other persons. The vehicle was going on Sanand-Sarkhej Highway and when it reached near brick-kiln of Somabhai Prajapati Bhattha at about 7.30 p.m. on 6.5.1980, the first respondent being driver of the said vehicle lost control over the steering, with the result, the jeep car went off the road and dashed against a road-side tree. With the result, the deceased sustained grievous injuries and other persons also sustained injuries. The deceased was taken to V.S. Hospital at Ahmedabad and he ultimately succumbed to the injuries at about 10 p.m. Post Mortem was carried out on 7.5.1980. 3. Therefore, the appellant-claimants have claimed before the learned Tribunal that the deceased died on account of rash and negligent driving on the part of the first respondent and therefore, the appellants were entitled to claim compensation from the first respondent on account of his tortuous act. 4. The appellants also contended before the Tribunal that the second respondent was the owner of the vehicle involved in question and the first respondent was driving the said vehicle under the employment of the second respondent and, therefore, the second respondent is vicariously responsible to compensate the appellant-claimants. 5. The appellants further contended that the vehicle in in question was insured with the third respondent and the contract of insurance was in existence on the date of the accident and, therefore, the third respondent is in statutory and contractual obligation to indemnify the owner. 6. That thereby all the three respondents are jointly and severally responsible and liable to compensate the petitioner. 7. In fact, the appellants claimed compensation before the learned Tribunal for a sum of Rupees Two lakhs. However, after appreciating the evidence, both the oral and documentary, which was made available to the Tribunal, the Tribunal was pleased to hold that the appellants were entitled to compensation of Rupees One lakh Fifty thousand with running interest at the rate of 6% per annum from the date of the petition till the date of payment together with proportionate costs of the litigation. 8. Respondents No.1 and 2 have been held jointly and severally responsible and liable to pay compensation with costs and interest as aforesaid to the appellants. 9. However, the learned Tribunal clarified that the third respondent shall be responsible and liable to indemnify the owner only to the extent of Rs.10,000/- with proportionate costs and interest as aforesaid. 10. Feeling aggrieved by the aforesaid judgment and award of the Tribunal, the appellants have preferred this appeal before this Court on the ground that the learned Tribunal has committed serious error in limiting the liability of the third respondents to the extent of Rs.10,000/- only. That in fact, the learned Tribunal ought to have held that since the owner has paid additional premium for the coverage of the persons travelling in the vehicle, the Insurance Company was responsible to indemnify owner to the extent of the entire amount awarded in the litigation. That therefore, the learned Tribunal has committed serious error as aforesaid and, therefore, it has been prayed that the limits of the liability of the Insurance Company should be held to be Rs. 1,50,000/- in the present case. 11. The learned Advocates for the appellants as well as for the third respondent have advanced their arguments at length. So far as the learned Advocate for the appellants is concerned, it has been very vehemently and extensively argued that the learned Tribunal ought to have held that the Insurance Company is fully responsible to indemnify the owner for the entire amount awarded in the matter. 12. It has been argued on behalf of the appellant-claimants that the learned Tribunal ought to have considered that the deceased was travelling as gratuitous passenger in the said vehicle and, therefore, there was no question of fixing any limited liability under the law or under the contract of policy. 13. On the other hand, learned Advocate for the third respondent has very vehemently contended that the deceased was not a gratuitous passenger but he was a paid passenger and therefore, the said argument advanced on behalf of the appellants cannot be accepted for a moment. 14. If we turn to the petition filed before the Tribunal, we find that the petitioners have themselves made it clear in para 10 of the petition that the deceased Jayantilal Patel had gone to attend the marriage of his cousin on 6.5.1980 at about 5 p.m. in the early morning, that the second respondent was using his car for carrying passengers on hire or reward, that the said respondent was also having a Registration Certificate for using his jeep car for carrying passengers on hire or reward. That the said vehicle was taken on hire by the brother of the bridegroom, Ramanbhai, who happened to be cousin of the deceased. That the rent was for fixed at Rs.1.40 per k.m. and, therefore, an amount of Rs..500/was paid in advance to the second respondent through Ramanbhai. 15. So it is absolutely clear from these pleadings that the vehicle involved in the accident was used by the second respondent for the purpose of hire or reward and the vehicle was in fact, hired for carrying the marriage party at the relevant point of time. So on these pleadings of the petitioner-appellants. it would not be possible for them now to say that the deceased was travelling in the said vehicle as gratuitous passenger . 16. If we go to the evidence, we will find that the petitioners have examined Madhuben Jayantilal, the widow of the deceased. However, it seems that she does not say anything about the contract. Her evidence mainly goes for the income of the deceased only. Then there is an important version of witness No.3 Ramanbhai Galabhai, who has very clearly deposed in his evidence that for the purpose of carrying the marriage party, they had hired a S.T. bus and a jeep car, so he is very clear in his evidence that even the jeep car was hired for carrying the marriage party. He is the brother of the bridegroom and cousin of the deceased and, therefore, he was very well knowing about the contract between the marriage party and the second respondent-owner of the vehicle. 17. The witness further goes to say that the jeep car hired was bearing No.GRS 4428 of the second respondent, that the fair was for fixed at 1.40 per k.m. that he had made payment of Rs.500/- to the second respondent towards advance fare. The evidence of this witness was recorded on 5.11.1981 and till then the second respondent had not filed written statement before the tribunal. None appeared on behalf of the second respondent to cross-examine the above witness. Therefore, till this date, the petitioner had a say that the vehicle was hired at Rs. 1.40 per k.m. and that case was pleaded in the petition and was advanced in oral evidence also. 18. It seems that at this point of time, the petitioner-appellants realised that they might not get compensation of adequate amount from the Insurance Company if the deceased would be treated as a paid passenger. Therefore, the petitioner-appellants appeared to have made some diversions from the original case pleaded by them in the original claim petition. 19. It appears from the proceedings of the matter that after the evidence of the said witness was recorded on 5.11.1981, the second respondent appeared before the Tribunal to file written statements at Exh.91. For the first time on 8.6.1982, a defence was placed on record through the said written statement of the second respondent that the deceased Jayantilal and the second respondent were close friends and therefore, the jeep car was provided for the said marriage party free of charge, meaning thereby that the deceased was travelling in the said vehicle as gratuitous passenger. 20. Again, in order to clarify the said position, the said witness Ramanbhai Galabhai was cross-examined on behalf of the second respondent and, there he has said that it is true that the amount of Rs.500/paid by him was paid to Jayantibhai and not to respondent No.2. This clearly appears to be an after thought, in order to go out of the said line of pleadings of the petitioner-appellants. Then he has said further in the cross-examination that the respondent No.2 never told him that the charges for distance of one kilo metre for a bus with a capacity of 52 passengers would come to Rs.1.40 per k.m. 21. Now the witness has already committed to the charges of Rs.1.40 per k.m. in his examinaion-in-chief. In his cross-examination, he said that the second respondent never told him that the bus charge would be Rs.1.40 per k.m. This would mean that he really did mean that the charges were for jeep car and not for the bus. Even otherwise, this witness does not say that the vehicle was given free of charge even in the cross-examination of respondent No.2. On the other hand, the witness has made it clear in the cross-examination of respondent No.2 that the deceased Jayantilal had told him that he should not bother about the jeep car's charges as the second respondent was his friend and that at the best he might pay diesel charges to the second respondent. 22. This means that if no regular charges, at least diesel charges were payable according to the suggestion made to this witness on behalf of the second respondent during the cross-examination of the witnesses. This makes it clear that even indirectly the second respondent suggested that this was not a case of free passage. 23. If we go to the evidence of Mohammad Abdul Karim, who happens to be second respondent and the owner of the vehicle involved in the accident, then this witness has deposed that Jayantilal, the deceased had met him and requested him to lend his jeep car for marriage of his brother. Therefore, he agreed to the proposal. That, the deceased also wanted to hire a special S.T. bus, and when he (the witness) was about to leave for Ahmedabad, when the deceased told him that one Controller who happens to be a native of Village Sadara was working in S.T. bus at Ahmedabad and the witness was also wanted to go to Ahmedabad and, therefore, Jayantilal gave him a lumpsum amount of Rs.500/- to be paid for booking a special S.T. bus and he had to pay Rs.1500/- and odd for booking a special S.T. bus for the deceased and the passenger fare was Rs.1.40 per k.m. for the bus. 24. Now, on this point, there is no other evidence on record produced by the parties. The receipt for payment of Rs.1500/- to the S.T. Corporation by this witness is not on record. It is also not on record as to how the remaining amount was paid. Moreover, his evidence does not have get corroboration from any other evidence on record. It is totally contrary to the pleadings of the claimant-appellants. He has denied that the deceased had not given him the money. He has also denied that the amount of Rs.500/- was collected by him as jeep car charges. In para 14 of his evidence, the witness made it clear that he was using his jeep car for plying for hire and reward also. The record also shows that at Exh.103, the claim form submitted by the second respondent for getting compensation for the damage sustained by his jeep car involved in the accident. There it has been mentioned that the jeep car was being used at the time of the accident for the purpose of carrying passengers. Then in the last column of item No.5, it has been mentioned that the vehicle was plying for hire upto 31.3.1981. 25. An attempt was made to show that the form was filled up by some one else and the second respondent merely signed the same. However, when he has signed the form, the form was not shown to be blank. Moreover, he did not contest or object against any averments made in the said claim form and therefore, it can now not be said that the second respondent merely signed the said claim form at Exh.103 without reading the contents thereof. It is not the case of this respondent that the claim form was blank when he signed. 26. So looking to the above facts and circumstances and considering the evidence on record, it is very clear that the deceased was travelling in the said jeep car at the time of the accident as paid passenger and not as gratuitous passenger. The appellants, themselves have made their claim in the claim petition accordingly and the averments made in the said petition contain admission on the part of the appellants and any evidence in variance of the said pleadings cannot be looked into. In fact, no evidence in variance to the pleadings is permissible under the rule of Evidence Act. Even if any such evidence is permitted to be produced, then the Tribunal was required to ignore such evidence and if such evidence is ignored, then it is apparently clear that the deceased travelled in the said vehicle at the time of the accident as paid passenger and not as gratuitous passenger. Therefore, we do not agree with the said arguments advanced on behalf of the appellants. 27. We, therefore, are of the view that the tribunal has rightly held that the deceased was travelling in the said vehicle as a paid passenger and not as a gratuitous passenger. Then, the question will relate to the nature of the vehicle involved in the accident. The learned Advocate for the appellants has argued at length before us that the vehicle involved in the accident was a private vehicle and not a commercial vehicle. However, if we look to the pleadings, we find that there is an absence of pleading on the subject. The appellants have not made any specific averments on the point. The owner of the vehicle who has filed written statement at a very late stage and has not stated in the written statement that it was a private vehicle. 28. In para 20 of the judgment, the learned Tribunal has very clearly observed that there was no dispute raised as to the fact that the jeep car was a vehicle plying in a contract-carriage permit. In other words, it was a vehicle which was used for carrying passengers for hire or reward. It means that the issue was conceded before the tribunal by the parties to the litigation, and therefore, it would not be open to the appellants now to take a different turn on the point. 29. Then we may also refer to document at Exh.109 which is a permit issued under Rule 81. It shows that it is a permit in respect of a particular contract carriage. This document shows that maximum number of passengers permitted to be carried is shown as 5+1 = 6 as per R.C. The document further shows in column 11 that the permit does not entitle to use the vehicle herein described as public carrier or a goods vehicle for hire. In short, the permit proves that the vehicle involved in the accident was a Taxi, permitted to carry passengers on hire or reward. 30. This means that the vehicle involved in the accident was permitted to be used as contract carriage. This would also show that it was not a private vehicle but it was permitted to be used for carrying passengers on hire or reward on contract carriage basis. Considering the material and the evidence on record and considering the stand taken by the parties before the Tribunal, we are of the view that the tribunal has rightly held that the vehicle was being used and was permitted to be used for carrying passengers on hire or reward under specific permit referred to above in the form of Exh.109. It would, therefore, not be open now to the appellants to argue that it was a private vehicle. 31. We are, therefore, of the decision that the vehicle involved in the accident was permitted to carry passengers on hire or reward and that the deceased was actually travelling in the said vehicle at the time of of accident as paid passenger. In view of the said decision, we do not consider now it necessary to decide as to what would happen if it was a private vehicle and the deceased was gratuitous passenger. Then it was vehemently contended by the learned Advocate for the appellants that the provisions contained in Section 95 clearly show that liability of the Insurer is unlimited. On the other hand, the learned Advocate for the Insurance Company has also argued that under the said provisions of law, the liability of the Insurance Company is limited to RS.10,000/- per passenger. It would, therefore, be necessary for us to consider the provisions of Section 95 of the Motor Vehicles Act, 1939 as was applicable on the date of the accident as well as on the date of the petition filed by the claimants for getting the compensation. Section 95 of the said Act clearly shows that except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment - (i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all. This means that upper limit has been fixed at Rs.50,000/- i.e. a total limit fixed by the law. However, this is in respect of the persons other than passengers carried for hire or reward. In the present case, the deceased was travelling as paid passenger and, therefore, this clause will not apply to the case of the present appellants. The provisions contained in Section 95 with respect to paid passengers would read as follows: "95 (2) Subject to the proviso to sub-section (1) a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely; (a) Where the vehicle is a goods vehicle, a limit of Rupees fifty thousand in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to, employees (other than the driver), nor exceeding six in number, being carried in the vehicle. (b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment - (i) In respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all, (ii) in respect of passengers, - (1) a limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers; xxx xxx (4) subject to the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab, and five thousand rupees for each individual passenger in any other case; Considering the above provisions it is very clear that the limits of liability has been fixed at Rs.10,000/per passenger and Rs.50,000/- in all. Then we can turn to the policy produced on record. The original policy on record shows that the premium has been paid as follows: Basic premium : Rs.501.00 Strike & Riot : Rs.140.00 LL to 5 passengers : Rs. 42.50 WC to 1/p driver : Rs. 8.00 ----------- Rs. 691.50 - 10% Spl.Disc. : Rs. 69.15 ----------- net Rs. 622.35 Rounded premium Rs. 622.00 The limits of liability shown in the policy can be read as follows: "Limits of the amount of the Company's liability under Section II-1(i) in respect of any accident Limit of the amount of the Company's liability under Section II-1 (ii) in respect of any claim or series of claims arising out of one event." Annexure to the policy reads as follows: "1. Subject to the Limits of Liability the Company will indemnify the Insured against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of (i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle. (ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle." IMT 13 annexed to the policy which reads as follows: "In consideration of an additional premium of Rs.42/50 and notwithstanding anything to the contrary contained in General Exception No.4 but subject otherwise to the terms, exceptions, conditions and limitations of this Policy the Company will indemnify the Insured against liability at law for Compensation (including Law Costs of any claimant) for death of or bodily injury to any person other than a person excluded under General Exception No.3 being carried in on upon or entering or mounting or alighting from the vehicle described in the Schedule hereto but such indemnity is limited to the sum of Rs.10,000/- in respect of any one person and subject to the aforesaid limit in respect of any one person to Rs.50,000/- in respect of any number of claims in connection with any one such vehicle arising out of one cause." Therefore, it is very clear that the risk of the passengers has been covered in accordance with law contained in Section 95 of the said Act of 1939. 32. It is vehemently contended that since the policy has been shown to be a comprehensive policy the risk covered is unlimited. For this purpose the learned Advocate for the appellants has invited our attention to the evidence of the officer of the Insurance Company showing that the policy is a comprehensive one. There is no dispute on the issue that the Insurance Officer has described this policy as a comprehensive policy. This can be gathered from the evidence of Mr Arvindbhai Dave at Exh.107. In para 2 of the cross-examination he has said that the policy is a comprehensive policy. 33. However, when the policy is described as comprehensive policy, it does not necessarily mean that it covers all sorts of risks under the sky. If a single risk in addition to