IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 1382 of 1980 For Approval and Signature: Hon'ble MR.JUSTICE H.R.SHELAT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- NATIONAL INSURANCE CO. Versus MINAXIBEN J PAREKH -------------------------------------------------------------- Appearance: MR MD PANDYA for Petitioner SERVED for Respondent No.1,2,3, 4, 5, & 6. -------------------------------------------------------------- CORAM : MR.JUSTICE H.R.SHELAT Date of decision: 09/04/97 ORAL JUDGEMENT Being aggrieved by the judgment and award dated 4th December 1979, passed by the then learned Chairman of the Motor Accident Claims Tribunal No.1 at Vadodara, in Motor Accident Claim Petition No. 180 of 1978 on his file partly allowing the petition and ordering to pay the compensation, the original opponent No.4 has filed this appeal. 2. In order to appreciate the contention raised, it is necessary to state the facts in brief. Jagdishchandra Natwarlal Parekh was the husband of opponent No.1, the son of opponent No.2, and, the brother of opponent No.3. He was residing at Surat. His father-in-law was not keeping well at Baroda. He had therefore on 25th June 1977 gone to see his father-in-law. Staying overnight, on the next day i.e. 26th June 1977 he left Baroda for going to Karjan. At 8.00 a.m. he was waiting near Makarpura Octroi Post in Baroda. At that time, one truck GTX 5563 was found coming. Waving the hand he got the truck stopped. The opponent No.4 was driving the truck. He agreed to carry Jagdishchandra Parekh. On Vadodara-Karjan Road, while proceeding towards Karjan, the opponent No.4 was driving the truck rashly and negligently so as to endanger the human life, as a result the truck met with an accident. Jagdishchandra Parekh sustained grievous hurt to which he succumbed at the spot. Jagdishchandra Parekh was the only bread earning member in the family. The opponents No. 1, 2 & 3 therefore sustained heavy loss. To make the loss good they filed the motor accident claim petition for compensation of Rs. 1,00,000/- against the opponent No.4-the driver of the truck; opponents No. 5 & 6 the owners of the truck; and the appellant joined as opponent No.4 in the main petition being the insurer of the truck. 3. The opponent No.4 did not file any written statement. The opponents No. 5 and 6 filed the written statement at Exh. 23 accepting the fact of accident, but denying the case of negligence and also disputing the quantum of compensation. The appellant also filed the written statement at Exh. 14, raising the same defence the opponents No. 5 & 6 raised in their written statement, and further submitting that by carrying the passenger in the goods vehicle the breach of the terms and conditions of the policy was committed and therefore it was not liable to pay the compensation. The learned Chairman of the Tribunal at the conclusion of the hearing appreciating the evidence before him held that the truck driver was rash and negligent in driving the truck. Because of his rash and negligent act accident occurred and Jagdishchandra Natwarlal Parekh sustaining grievous inquiries succumbed to the injuries at the spot. He found that Jagdishchandra Natwarlal Parekh was a paid passenger in the truck and therefore the appellant was liable to pay the compensation as its liability was coextensive with the owners of the truck. The Insurance Company being aggrieved by the judgment and award has filed this appeal assailing the findings of the Tribunal. 4. The learned Advocate representing the appellant submits that, no doubt accident happened on 26th June 1977, but the appellant ought not to have been fastened with the liability because the vehicle involved in the accident was the goods vehicle and under the policy the risk of the passenger was not at all covered much less the gratuitous passenger. Jagdishchandra Natwarlal Parekh was a gratuitous passenger but that fact appearing on record is not correctly evaluated by the learned Tribunal. The learned Chairman of the Tribunal fell into error in incorrectly appreciating the evidence of Dipakbhai and Mulchandbhai and conveniently discarding the notice Exh.84, & statement of opponent No.4 Exh.99 recorded by the police during the course of the investigation, and written statement filed by opponents No. 5 & 6 the owners of the truck. In these documents no where it is mentioned that fare was recovered by the driver from the deceased and so the deceased was not the gratuitous passenger but the passenger for hire or reward. In the petition also no such case about recovery of fare is advanced. Hence, it has been vehemently argued before me that such omissions or silence of the opponents would show that in fact Jagdishchandra was a gratuitous passenger and not a passenger for a hire or reward. 5. True in the notice, Exh. 84 given to the insurance company-appellant before the claim petition was filed, in the petition and in the written statement filed by opponents No. 5 & 6 nothing has been mentioned about the fare having been recovered by the driver-opponent No.4 and opponent No.4 has also not stated any thing in this regard in his statement, Exh.99 before the police when the police was investigating into the offence, and so the silence would apparently appear to be fatal to the petitioner, but when overpowering and outrooting factor on record is considered the omission to mention about the charges having been recovered for the purpose of carriage loses the value. Before I proceed, I may mention that, no doubt in the written statement the opponents No. 5 & 6 have not stated the case about charges having been recovered by the driver for the purpose of carrying Jagdishchandra Natwarlal Parekh, but that omission cannot help the appellant. It may be remembered that in the petition as contended such case is not advanced. When that is so, there would be no mention in the written statement about the same. If at all the charges were recovered looking to the law, one would like to be shrewdly silent on the point while advancing the pleadings rather than being trapped by mentioning about it directly or indirectly. I will now switch over to overpowering factors. Dipakbhai Kantilal Parekh, the brother of opponent No.1 has been examined at Exh. 86. He had gone with the deceased upto Octroi Post to bid adieu. He came back after the deceased boarded the truck and left. In his presence the deceased and the truck driver-opponent No.4 were chaffering for the fare. The opponent No.4 was demanding Rs. 3/- while the deceased was ready to pay the amount equal to the S.T. bus fare. Ultimately, both agreed for Rs. 2/-. In presence of this witness Rs.2/- were paid to the driver of the truck by the deceased while boarding the truck. No doubt in the cross-examination, the appellant has made an attempt to challenge such statements made by this witness, but when the evidence is perused with meticulous care and finicky details, it appears that the learned Judge rightly accepted the evidence as there is no reason to discard the statements about the payment of charges made by the deceased to the driver. Simply because this witness happens to be the brother-in-law of the deceased, his statement cannot be discarded on that ground alone. This witness finds support. One of the owners of the truck-opponent No.6 appeared before the Tribunal and deposed at Exh. 88. According to him, on being questioned after the accident, his driver-the opponent No.4, apprised him that one passenger lost the life in accident; and from him he had charged Rs. 2/-. The said amount were retained by the driver. His such statement also cannot be brushed aside lightly holding that he being the interested witness would state accordingly regardless of the reality. When the owner of the truck gathering the particulars and information from his driver makes the statement, the opponents No.1, 2 & 3 and Dipakbbai get support from horse's mouth and that outrooting factor tarnishes the effect of the omissions pointed out; in fact the omissions lose value. I have gone through the judgment and I am in general agreement with the reasonings and findings of the learned Chairman of the Tribunal on this point. When that is so, it is not necessary to restate all those reasonings. 6. Above stated established facts on record, thus, show that the deceased was not the gratuitous passenger but the passenger for hire or reward. If that is so, what is the liability of the Insurance Company in law is required to be examined. A similar question arose before this Court in the case of Gujarat State Road Transport Corporation vs. Malubai Menand, W/o. Deceased Kana Kachra & Others - 21 G.L.R. 400, wherein discussing the relevant provisions of law it is held that if the driver of the truck or the goods vehicle carries the passenger on payment of some fare, the Insurance Company is liable to satisfy the claim and cannot eschew its liability on any count. In view of this decision rendered by the Division Bench of this Court, the appellant insurer cannot avoid its liability to pay the compensation because its liability would be coextensive with the insured, namely opponents No. 5 & 6 who are vicariously liable for the tortious act of their servant-opponent No.4 who did the wrong in the discharge of his duties assigned, i.e. wrong is done in the course of employment. The learned Tribunal was, therefore, perfectly right in passing the award against the appellant. On no other ground, the judgment and award passed by the Tribunal are called in question. 7. For the aforesaid reasons, the appeal, being devoid of merits, is hereby dismissed with no order as to costs. ......