Case: The National Insurance Company Limited Vs. Dayanand Margeppa Pedde &amp; Others

all since it was subject to the endorsement 14(b). In view of the admitted position that an additional premium was paid by the insured, we have no hesitation in holding that the insurance company had undertaken the liability to pay compensation to authorised non fare paying passenger, such as the claimants, who was in the truck as the owner of the goods.38. In the course of arguments, when it transpired that the insurance policy on record has not been proved by the insurance company in accordance with law, we hinted to the learned counsel for the insurance company to consider whether he would like to apply for leading additional evidence in order to prove the insurance policy. The response of learned counsel for the insurance company was not positive. He, on the contrary, placed reliance upon the judgment of the High Court of Madhya Pradesh in Angoribais case to contend that it was not necessary for the insurance company to prove the policy. We have already considered the Angoribais case and held that the said judgment is of no avail to the insurance company. In our opinion, the insurance company cannot take or be allowed to take advantage/benefit of its own wrong. While dealing with the case arising from the motor accident claims petition, in fact, benefit of the wrong, if any, committed by the insurance company while conducting the case, whether procedural or otherwise, should be given to the claimant. The insurance company, in motor accident claims petitions, should be more diligent while dealing with claim petitions and in following the procedure as contemplated by law for proving the documents on which they seek to rely upon. In other words, the procedure contemplated by law should to be followed strictly and if there is any lapse on the part of insurance company in following the procedure laid down by the law, it should not, under any circumstances, be allowed to take benefit thereof.39. In the light of the observations made in the foregoing paragraph, we would now like to consider the submissions of Mr.Bhide that even if the insured had paid additional premium still the claimant cannot take benefit of the same to seek unlimited compensation from the insurance company. He submitted that the additional premium was taken for covering the risk only to the extent of Rs.20,000/- and it was subject to endorsement 14(b). He then submitted that as per the endorsement 14(b), on payment of additional premium, the insurance company had agreed to indemnify the insured against his legal liability other than liability under statute in respect of death or bodily injury to any person not being an employee of the insured or not carried for hire or reward, provided that such person is charterer of the truck. The endorsement 14(b) on which the insurance company is relying upon is not on record as admissible evidence. The endorsement 14(b) is a part of the insurance policy. The endorsement, therefore, cannot be looked into and/or relied upon since the policy itself is not admissible in evidence. In the circumstances the submission of Mr.Bhide that the claimant is at the most entitled for compensation to the extent of Rs.20,000/- or he is not entitled at all because he was not charterer of the truck must be rejected.40. In the present case admittedly the insurance company had agreed to indemnify the insured against his legal liability other than liability under section 147 of the Act of 1988, prior to 1994 by accepting the additional premium. The submission of Mr.Bhide, learned counsel for the insurance company that the claimant, who was travelling in the truck, in view of the judgment of the Supreme Court in Asha Ranis case (supra), is not entitled for any compensation from the insurance company, for the reasons recorded in the foregoing paragraphs must be rejected. The ratio laid down by the Supreme Court in Asha Ranis case cannot be disputed. However, in our opinion, it would not apply to the facts of the present case.41. It is well settled that the policy can always cover higher risk to third party on payment of additional premium. Prior to the amendment in 1994, the insurance company had every right to indemnify the insured against his legal liability other than the liability under section 147 of the Act of 1988 in respect of death or bodily injury to any person not being an employee including the driver and cleaner of the insured and not carried for hire or reward. In the present case, the insurance company had admittedly collected additional premium, and had thereby undertaken liability to non fare paying passenger, who was otherwise not covered by the provisions of section 147. Thus, the right of the claimant, in the present case, to seek compensation would not get affected by the provisions of section 147 of the Act, prior to the amendment of 1994 or by the judgment of the Supreme Court in Asha Ranis case.42. Once having taken this view of the matter it will have to be presumed that the liability of the insurance company is unlimited. It is not open to the insurance company, in such a situation, to contend that their liability is limited having failed to prove the policy in accordance with law or to contend that the claimant is not entitled for compensation since he was not charterer of the truck as contemplated by the endorsement 14(b).43. Insofar as the finding on the issue whether the driver was rash and negligent at the relevant time is concerned, though the learned counsel for the insurance company did not either challenge or address the court, from perusal of evidence and other material on record we are satisfied that the affirmative finding recorded by the Tribunal deserve no interference in the appeal. Insofar as injuries sustained and permanent disability suffered by the claimant is concerned, there is ample evidence on record, as discussed earlier, in support of the findings recorded by the Tribunal in respect thereof.

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

Explanation:
0[ds]10. In support of the claim, the claimant also stated how much expenditure he had incurred till his evidence was recorded, and how much more expenditure he would require in future, to which we are not making reference in view of the fact that the learned counsel for the insurance company did not address us on the quantum of compensation. However, at this stage we observe that there is sufficient material on record which justify the total amount of compensation awarded by the Tribunal, and, in our opinion, it deserves to be confirmed. In the cross examination, it was stated that alongwith him there were 5 other persons in the truck including the driver. He, however, specifically denied the suggestion that he was not carrying any goods with him in the truck.The judgment of the Madhya Pradesh High Court in Angoribais case, in our opinion, is of no avail to the insurance company for more than one reason. In the present case, additional premium was paid by the insured to the insurance company for covering the risk of non fare paying passenger which was not the case in Angoribais case. Moreover, the claimant in the present case, for the reasons recorded in the judgment, was not traveling in the truck as gratuitous/unauthorised passenger. In Angoribais case the deceased was travelling in a goods carriage as a passenger, apart from the fact that no additional premium was paid by the insured. It is against this backdropof policy was held to be not fatal in that case. In our opinion, having regard to the facts of the present case, the judgment in Angoribais case, pressed into service is of no avail to the insurance company.The Claims Tribunal, as contemplated by section 169 of the Act of 1988, has all the powers of a civil court for the purpose of taking evidence, production of documents etc. In view thereof, we deem it appropriate to look into the relevant provisions of the Code of Civil Procedure (for short the Code). Rule 3 of Order 8 of the Code of Civil Procedure clearly provides that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal with specifically with each allegation of fact of which he does not admit the truth, except damages. Similarly, Rule 5(1) provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. Thus, the defendant is bound to deal specifically with each allegation of fact not admitted by him; he must either deny or state definitely that the substance of each allegation is not admitted. It does not of course mean that every allegation in the plaint should be reproduced at length in the written statement for the purpose of denial. However, the main allegation which forms the foundation of the suit should be dealt with in that way and expressly denied. As a matter of fact, such denial should be taken up separately as far as possible and they should either admit or deny or state definitely that he does not admit. As provided under Order 8 Rule 5, the facts not specifically dealt with or denied will be otherwise taken to be admitted. Even where denial of fact is not specific but evasive or ambiguous or general in nature the said fact shall be taken to be admitted. In such event, the admission itself being proof, no other proof is necessary. (See Bodat and Co. Vs. East India Trading Co. AIR 1964 SC 538   (Para 11) and the judgment of this court in Sambhaji Laxmanrao Pawar Vs. Abdul Wahed s/o Rahmatullah (1995) 1 Mah.L.J.22, 27). In other words, where the denial is general, evasive, vague and not specific or where there is no denial, the allegations made in the plaint shall be taken to be admitted. (See Radhabai Krishnanand Vernekar Vs. Gourawwabai Sharnappa BukkaOthers 2001 (2) Bombay Law Reporter 241 (Bom.)). Thus, the law is well settled that if there is no specific denial of the fact/allegation, which forms foundation of the suit/claim petition, such fact/allegation shall be taken to be admitted and in that event there is no duty cast on the plaintiff to prove that allegation. (See Sushil Kumar Vs. Rakesh Kumar AIR 2004 SC 230  ). Keeping this position of law in view, the question raised by the insurance company in this appeal will have to be examined.30. In the present case the learned counsel for the insurance company submitted that even if the policy was not exhibited or contents thereof were proved still the insurance company can rely upon the policy in view of the judgment of the High Court of Madhya Pradesh in Angoribais case, wherein it was held that it was not necessary to prove the policy. The provisions of Rule 3 and 5 of Order 8 of the Code of Civil Procedure provide that the opponent/defendant is bound to deny/dealt with specifically in the written statement every allegation and more particularly the allegation which forms the foundation of the claim petition. In the present case, the claimant, in the claim petition, has specifically stated that he boarded the truck at Mumbai with the goods, which is a foundation of the claim. On the basis of this averment in the petition, he contends that he was authorised non fare paying passenger. Admittedly, there is no specific denial of this averment and/or it was not dealt with in the written statement. After the claimant amended his pleading the insurance company had ample opportunity to file its additional written statement but they fail to do so.Out of the three documents placed on record with the application atthe two documents i.e. serial no.(b) and (c) were admitted by the learned counsel for the insurance company. Therefore, in the margin of the application atthe Tribunal marked the documents at serial no.(b) and (c) asand 44 respectively. We have perused the statement of Gyanu Darekar dated 21.2.1990 which was marked asThis seems to be a certified copy of the FIR. In the FIR, Gyanu Darekar had stated that paper/card board boxes were there in the truck. The other document at serial no.(c) was a certified copy of the panchnama. When we perused the panchnama, we did not find any marking much less the marking asThere is a statement of the claimant dated 18.2.1980 on record. The said statement was marked asThe claimant was confronted with certain portions of that statement and they were marked as A to G. From the actual marking of the documents asand 44 and the marking made in the margin (asand 44) of the list of documents/application dated 12.1.2001it is clear that the learned Judge while marking the documents undoubtedly committed some error and seems to have wrongly marked the statement of the claimant asinstead of marking the panchnama aswhich was admitted by the advocate for the insurance company or the other way round. That apart, the learned member of the Tribunal in paragraph 10 of the impugned judgment has made reference only to the statement of the claimantand completely overlooked the other two documents, namely, the FIRand the panchnama. Both these documents, if read alongwith the statement of the claimant, in our opinion, would clearly show that the paper/card board boxes, as claimed/stated by the claimant, were there in the truck when it met with an accident. It is not the case of the insurance company, either in their written statement or in the cross of the claimant, that the goods were not of the claimant or they were of any other party. The learned Member of the Tribunal has not made any reference to these documents while recording the finding that the claimant was not travelling at the relevant time alongwith the goods.The learned member of the Tribunal in the judgment as well as while recording the evidence has used the expression paper cartons. The expression used in the FIRand in the panchnama, in Marathi, for describing the goods is Kagdi Puthyache Khokecartons or boxes). We have also perused the statement of the claimant dated 18.2.1990, which is marked asIt is a short statement, which, it seems, was recorded immediately after the occurrence. That could be the reason why it was not giving all the details. In any case, the omission on the part of the claimant in making reference to theboxes in this statement (dated 18.2.1990), in our opinion, looses its significance in view of thepleadings, and contents of the FIR and the panchnama, which clearly show that theboxes were there in the truck and they were of the claimant. In the circumstances we set aside the finding recorded by the tribunal in paragraph 10 of the judgment holding that there is no evidence to show that at the relevant time the claimant was travelling alongwith his goods. We are satisfied that the claimant was in the truck with his goods.34. Even if it is assumed that the claimant was not travelling in the truck alongwith his goods, as submitted by the learned counsel for the appellant, the case that he was to load 70 salt bags at Solapur for carrying them to Latur, as stated by the claimant in the claim petition and in his examination in chief, cannot be overlooked. As a matter of fact the case regarding salt bags had not been specifically challenged/denied in the cross/written statement by the insurance company. The claimant states that he boarded the truck as hirer with clear understanding and/or agreement with the driver of the truck that he would load 70 salt bags at Solapur for carrying them to Latur. Thus, it is clear that he entered into a contract of carriage of the goods in this manner, the contract was of composite character and hence it cannot be said that he was not travelling in the truck at the relevant time as the owner of the goods. At this stage it would be relevant to reproduce the observations made by this court in Nasibdar Suba Fakirs case (supra) wherein this court was considering somewhat similar situation and after considering the facts on record rejected the similar contention that the claimant was not accompanying the goods and must be treated to be one not being carried for reward. The relevant observations read thus:.... .... ....But deeper examination of law in general would show that this is not the correct analysis of the law. It is seen above that when the owner of the truck hires a vehicle for the transport of his goods, it is imperative, for him that someone should accompany the goods and go in the vehicle as a passenger along with the goods. Likewise, it becomes necessary that someone should go as passenger in the first instance for bringing the goods from some place and carrying them to some other place. This may be for loading or unloading of the goods or for many other purposes incidental to the transportation of the goods. For instance, owner of the goods X may be having his office in Bombay. He wants his goods to be transported. The goods may be lying in Thana. He would engage a truck in Bombay, but for loading the goods from Thana he would require some employees. He has employees in his office at Bombay. Naturally, he would take those employees to Thana. The goods would be loaded in the truck by the employees and the goods would be brought back to Bombay. While coming back, naturally the employees would accompany the goods as passengers in the truck. Their coming back would be necessary so that the goods may be unloaded in Bombay. When the owner of the goods enters into the contract of the carriage of goods in this manner the contract is of a composite character. The contract is not for carriage of the goods; the contract is for safe and convenient transport of the goods from the beginning till the end and the process of contract involves loading and unloading and safe carriage. For all this purpose, the accompaniment of some other persons, other than the driver of the vehicle, along with the vehicle is imperative. This is a matter of common knowledge and of everyday life. Elaborate evidence is unnecessary for such conclusion. The doctrine of judicial notice looks after the evidential requirement for such judicial conclusion. The point is that the consideration which is paid by the owner of the goods for the transport of the goods is a composite consideration. It is a consideration for the transport of goods as well as for the incidental transport of the passengers accompanying the goods or those going for fetching the goods. If this is so, then the owner of the goods can legitimately contend that though he was having his office in Bombay, he was going to Thana for bringing his own goods and he entered into a contract with the owner of the truck by agreeing to pay the composite consideration; consideration for carriage of the goods and consideration for carriage of the passenger necessary for supervision etc., of the goods. He can further legitimately contend that if his employees could be legitimate passengers of the vehicle for supervising the transport of the goods, he himself could as well be a passenger whose presence on the vehicle at the relevant time is as much necessary and as much part of a contract for which he paid the consideration. Once it is accepted that the consideration paid by him included the consideration for his own carriage, it cannot be said that he was not carried by the driver of the truck for reward at the relevant time.The plea that the claimant was not accompanying the goods and hence must be deemed to be one not being carried for reward need not detain us long. The plea is in fact answered by the above analytical discussion. When a vehicle is hired for bringing goods from a place away from the place of office or residence of the hirer, as also of the owner of the vehicle, it is natural that the hirer and/or his employees will, quite often, go by the vehicle to the place where the relevant goods are lying. Their transport to that place is as much a part of the contract and, hence, for reward or consideration.(emphasis supplied)35. The insurance company vide their application dated 10.2.2004 placed on record two documents, namely, the insurance policy and a photocopy of the statement of the claimant recorded by the police on 18.2.1990. The advocate for the claimant did not admit these documents and hence they were not marked as Exhibits. Mr.Bhide, learned counsel for the insurance company made a feeble attempt in submitting that though the documents were not exhibited by the court, the application dated 10.2.2004 itself was marked asIn the course of arguments, when it transpired that the insurance policy on record has not been proved by the insurance company in accordance with law, we hinted to the learned counsel for the insurance company to consider whether he would like to apply for leading additional evidence in order to prove the insurance policy. The response of learned counsel for the insurance company was not positive. He, on the contrary, placed reliance upon the judgment of the High Court of Madhya Pradesh in Angoribais case to contend that it was not necessary for the insurance company to prove the policy. We have already considered the Angoribais case and held that the said judgment is of no avail to the insurance company. In our opinion, the insurance company cannot take or be allowed to take advantage/benefit of its own wrong. While dealing with the case arising from the motor accident claims petition, in fact, benefit of the wrong, if any, committed by the insurance company while conducting the case, whether procedural or otherwise, should be given to the claimant. The insurance company, in motor accident claims petitions, should be more diligent while dealing with claim petitions and in following the procedure as contemplated by law for proving the documents on which they seek to rely upon. In other words, the procedure contemplated by law should to be followed strictly and if there is any lapse on the part of insurance company in following the procedure laid down by the law, it should not, under any circumstances, be allowed to take benefit thereof.39. In the light of the observations made in the foregoing paragraph, we would now like to consider the submissions of Mr.Bhide that even if the insured had paid additional premium still the claimant cannot take benefit of the same to seek unlimited compensation from the insurance company. He submitted that the additional premium was taken for covering the risk only to the extent of Rs.20,000/and it was subject to endorsement 14(b). He then submitted that as per the endorsement 14(b), on payment of additional premium, the insurance company had agreed to indemnify the insured against his legal liability other than liability under statute in respect of death or bodily injury to any person not being an employee of the insured or not carried for hire or reward, provided that such person is charterer of the truck. The endorsement 14(b) on which the insurance company is relying upon is not on record as admissible evidence. The endorsement 14(b) is a part of the insurance policy. The endorsement, therefore, cannot be looked into and/or relied upon since the policy itself is not admissible in evidence. In the circumstances the submission of Mr.Bhide that the claimant is at the most entitled for compensation to the extent of Rs.20,000/or he is not entitled at all because he was not charterer of the truck must be rejected.40. In the present case admittedly the insurance company had agreed to indemnify the insured against his legal liability other than liability under section 147 of the Act of 1988, prior to 1994 by accepting the additional premium. The submission of Mr.Bhide, learned counsel for the insurance company that the claimant, who was travelling in the truck, in view of the judgment of the Supreme Court in Asha Ranis case (supra), is not entitled for any compensation from the insurance company, for the reasons recorded in the foregoing paragraphs must be rejected. The ratio laid down by the Supreme Court in Asha Ranis case cannot be disputed. However, in our opinion, it would not apply to the facts of the present case.It is well settled that the policy can always cover higher risk to third party on payment of additional premium. Prior to the amendment in 1994, the insurance company had every right to indemnify the insured against his legal liability other than the liability under section 147 of the Act of 1988 in respect of death or bodily injury to any person not being an employee including the driver and cleaner of the insured and not carried for hire or reward. In the present case, the insurance company had admittedly collected additional premium, and had thereby undertaken liability to non fare paying passenger, who was otherwise not covered by the provisions of section 147. Thus, the right of the claimant, in the present case, to seek compensation would not get affected by the provisions of section 147 of the Act, prior to the amendment of 1994 or by the judgment of the Supreme Court in Asha Ranis case.42. Once having taken this view of the matter it will have to be presumed that the liability of the insurance company is unlimited. It is not open to the insurance company, in such a situation, to contend that their liability is limited having failed to prove the policy in accordance with law or to contend that the claimant is not entitled for compensation since he was not charterer of the truck as contemplated by the endorsement 14(b).43. Insofar as the finding on the issue whether the driver was rash and negligent at the relevant time is concerned, though the learned counsel for the insurance company did not either challenge or address the court, from perusal of evidence and other material on record we are satisfied that the affirmative finding recorded by the Tribunal deserve no interference in the appeal. Insofar as injuries sustained and permanent disability suffered by the claimant is concerned, there is ample evidence on record, as discussed earlier, in support of the findings recorded by the Tribunal in respect thereof.