Case: Gopibai Ghanshamdas Advani (Smt.) &amp; Others Vs. Food Corporation of India &amp; Others

policy has been interpreted by the Supreme Court to include even a person who is given a lift. It would thus be clear that it would not be necessary to construe the term passenger to mean that the person must be a passenger in any passenger service or stage carriage vehicle. 12. The above discussion would, therefore, show that the Insurance Company would be liable if deceased Ghanshamdas was being carried in the car by reason of or in pursuance of a contract of employment. We have already observed that deceased Ghanshamdas accompanied by the other officers of the Corporation had gone to Shrirampur on official duty and were returning after performing such duty. Obviously, it will not be possible for the Insurance Company to contend that Ghanshamdas was not being carried in the car by reason of or in pursuance of a contract of employment with the Corporation. 13. Mr. Chaphekar, however, contended that simply because on that particular day, deceased Ghanshamdas was so carried in the car would not necessarily fasten any liability on the Insurance Company unless there is evidence to show that the Car No. MRH 4969 was habitually used for carrying persons by reason of or in pursuance of a contract of employment. He drew our attention to a decision of the Kings Bench in the case of (Izzard v. Universal Insurance Co. Ltd.)4, reported in 1937(3) All.E.R. 79. Section 39 of the Road Traffic Act and the relevant clause in proviso (ii) of section 95 of the Motor Vehicles Act are practically similar. In that case the owner of a motor car took the plaintiff to London and received certain amount as hire. On the way the car met with an accident on account of rashness and negligence of the driver. The car was insured under the provisions of section 36 of the Road Traffic Act. The question arose as to whether the Insurance Company was bound to pay the compensation under the insurance policy. It was held that with a view that the vehicle should be a vehicle in which passengers are carried for hire or reward, it is necessary that the vehicle should normally and habitually be used in that way and that an isolated occasion of carrying a passenger for hire or reward would not make that vehicle of a type needed to be covered by the insurance policy. Shri Chaphekar also relied upon the commentary from the book, Shawcross on Motor Insurance, II Edition. In that commentary the above-mentioned case of Izzard v. Universal Insurance Co. Ltd., has been discussed and it has been observed that the vehicle should be habitually used for the purpose as contemplated by the relevant clause of carrying passengers for hire reward. On page 208, the commentary reads as follows :--- "As to the point whether the vehicles in which passengers are carried in pursuance of or by reason of a contract of employment are confined to those used habitually for such purposes, it is noticeable that both Izzards case and the case of Baker v. Provident Accident and White Cross Insurance Co. Ltd. (o), the vehicles were in fact habitually used in such a manner. The point was not taken in either case, but it is submitted that in the authority of Wyatt v. Guildhall Insurance Co. Ltd., habitual user of this nature must be proved in order that the claim may succeed."14. In our opinion, in the present case it is not necessary to decide as to whether the vehicle should be habitually used for carrying passengers by reason of or in pursuance of a contract of employment as suggested by Mr. Chaphekar. We do not propose to express any opinion on this requirement as, in our opinion, even if the contention of Mr. Chaphekar is accepted, there is abundant material to hold that deceased Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment. In that first place, it is material to note that the Insurance Company has not raised any specific plea that the vehicle in question was not so habitually used. Apart from that, the written statement filed by the Insurance Company makes the position clear. In paragraph 2, Insurance Company has pleaded as follows :--- "The insurers further say and submit that at all material times, the deceased was being carried in the aforesaid vehicle in pursuance of his contract of employment with the Opposite Party No. 2 and his death arose out of and in the course of his employment with said opposite party." In our opinion, that statement constitutes an admission that Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment.15. There is one more aspect which cannot be forgotten. In the present case, the owner of the vehicle, namely, the Food Corporation of India is a statutory Corporation. This Corporation has its headquarters at Delhi and at Manmad there is a sort of branch office or sub-office. It is at this branch office that the Ambassador Car No. MRH 4969 was kept for the office use and for obvious reasons the said car can or should be used only by the employees of the Food Corporation of India and that too by reason of or in pursuance of their contract of employment with the Corporation. In view of these circumstances we do not think that there is any substance in the contention of the Insurance Company that the vehicle was not habitually used for the purpose that is needed under the relevant clause of the second proviso of section 95 of the Motor Vehicles Act. The Insurance Company would, therefore, be equally liable to pay the compensation that has been awarded by the Motor Accidents Claims Tribunal and to that extent the order of the Tribunal needs to be modified. Hence, we pass the following order :---

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. It is true that the claimants have not been able to examine any person who had actually seen as to how the car fell in the canal. However, such evidence is not always necessary and many a times that type of evidence may not be available. The Motor Accidents Claims Tribunal has relied upon the principle of res ipsa loquitor for the purpose of deciding as to whether the circumstances are such that rashness and negligence on the part of the driver can be conclusively inferred. It is in evidence that it was a dark night and there were no light on the kaccha road. Driver More has admitted that when he started driving the vehicle on the kaccha road by the side of the canal, the car was wobbling and that it was taking turns. Even then he continued to drive the vehicle. It is material to note that the road was itself a kaccha one and was passing by the side of the canal. The very fact that the car was wobbling and taking turns would indicate that the driver could have taken the decision not to proceed further. However, he did go ahead and in that process the unfortunate incident of the fall of the car in the canal took place. In our opinion, the circumstances are so eloquent that rashness and negligence on the part of the driver requires to be deduced and it will not be open for Mr. Advani to contend that those circumstances should be brushed aside simply because the claimants are not able to lead evidence of an independent witness. In our opinion, the learned District Judge and Ex Officio Member of the Motor Accidents Claims Tribunal, Ahmednagar has rightly recorded a finding that Ghanshamdas met his death on account of the rash and negligent driving of driver More.The above discussion would, therefore, show that the Insurance Company would be liable if deceased Ghanshamdas was being carried in the car by reason of or in pursuance of a contract of employment. We have already observed that deceased Ghanshamdas accompanied by the other officers of the Corporation had gone to Shrirampur on official duty and were returning after performing such duty. Obviously, it will not be possible for the Insurance Company to contend that Ghanshamdas was not being carried in the car by reason of or in pursuance of a contract of employment with thethat case the owner of a motor car took the plaintiff to London and received certain amount as hire. On the way the car met with an accident on account of rashness and negligence of the driver. The car was insured under the provisions of section 36 of the Road Traffic Act. The question arose as to whether the Insurance Company was bound to pay the compensation under the insurance policy. It was held that with a view that the vehicle should be a vehicle in which passengers are carried for hire or reward, it is necessary that the vehicle should normally and habitually be used in that way and that an isolated occasion of carrying a passenger for hire or reward would not make that vehicle of a type needed to be covered by the insurance policy. Shri Chaphekar also relied upon the commentary from the book, Shawcross on Motor Insurance, II Edition. In that commentary thecase of Izzard v. Universal Insurance Co. Ltd., has been discussed and it has been observed that the vehicle should be habitually used for the purpose as contemplated by the relevant clause of carrying passengers for hire reward. On page 208, the commentary reads as followsto the point whether the vehicles in which passengers are carried in pursuance of or by reason of a contract of employment are confined to those used habitually for such purposes, it is noticeable that both Izzards case and the case of Baker v. Provident Accident and White Cross Insurance Co. Ltd. (o), the vehicles were in fact habitually used in such a manner. The point was not taken in either case, but it is submitted that in the authority of Wyatt v. Guildhall Insurance Co. Ltd., habitual user of this nature must be proved in order that the claim may succeed."14. In our opinion, in the present case it is not necessary to decide as to whether the vehicle should be habitually used for carrying passengers by reason of or in pursuance of a contract of employment as suggested by Mr. Chaphekar. We do not propose to express any opinion on this requirement as, in our opinion, even if the contention of Mr. Chaphekar is accepted, there is abundant material to hold that deceased Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment. In that first place, it is material to note that the Insurance Company has not raised any specific plea that the vehicle in question was not so habitually used. Apart from that, the written statement filed by the Insurance Company makes the position clear. In paragraph 2, Insurance Company has pleaded as followsinsurers further say and submit that at all material times, the deceased was being carried in the aforesaid vehicle in pursuance of his contract of employment with the Opposite Party No. 2 and his death arose out of and in the course of his employment with said oppositeour opinion, that statement constitutes an admission that Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment.There is one more aspect which cannot be forgotten. In the present case, the owner of the vehicle, namely, the Food Corporation of India is a statutory Corporation. This Corporation has its headquarters at Delhi and at Manmad there is a sort of branch office orIt is at this branch office that the Ambassador Car No. MRH 4969 was kept for the office use and for obvious reasons the said car can or should be used only by the employees of the Food Corporation of India and that too by reason of or in pursuance of their contract of employment with the Corporation. In view of these circumstances we do not think that there is any substance in the contention of the Insurance Company that the vehicle was not habitually used for the purpose that is needed under the relevant clause of the second proviso of section 95 of the Motor Vehicles Act. The Insurance Company would, therefore, be equally liable to pay the compensation that has been awarded by the Motor Accidents Claims Tribunal and to that extent the order of the Tribunal needs to be modified.