Case: Nasibdar Suba Fakir Vs. Adhia &amp; Company &amp; Others

2. The facts of the case are more or less admitted. When some of the facts are in dispute, we will indicate the nature of the dispute at the appropriate place. The facts are as follows :The appellant (who will be referred to hereafter as the claimant) had taken on hire a truck belonging to respondent No. 2. That was Motor Lorry No. MRT 3987. For the sake of convenience, we will call this truck as Truck A. It is not disputed that the truck was hired by the claimant in Bombay and it was being taken by the claimant from Bombay to Thane for picking scrap materials from Thane to Bombay. The vehicle was being driven by the driver who was the employee of respondent No. 2. The claimant was accompanying the driver and was sitting next to him. As the vehicle A was being driven, at a speed which was evidently excessive, it collided against another Motor Lorry No. MRR 7557 at a point onroad at Bhandup. The latter truck coming from the opposite direction, from north to south, belonged to respondent No. 1 and was being driven by his driver. One Shirke, who was the cleaner, was sitting next to the driver in that vehicle. For the sake of convenience, we will call the said latter vehicle as Vehicle B. It is to be noted that it was not a case of aconllision between the two vehicles A and B. The facts found are, and about these facts there exist no dispute any longer, that vehicle A swerved right, suddenly, while it was being driven at the excessive speed along the Bombay. Agra Road and as it swerved right the vehicle B coming from the opposite direction had to swerve left. But this protective swerving by the truck B was of no avail. The collision could not be avoided. This was principally because vehicle A was being driven on the wrong side and was very much to the right of the road and in addition to this, it swerved to its right even further. Vehicle A brushed against the right side of vehicle B and damaged it extensively. When both the vehicles collided and stopped, vehicle B in fact mounted the easternon the road so much so that both its wheels rested on the foot path. The driver of vehicle B received serious injuries. Even the cleaner on the said vehicle got injuries. So far as the driver of Vehicle A . in which the claimant was the passenger, was concerned the driver escaped uphurt but in the said truck one more person besides the claimant was travelling; that person got killed by virtue of the said collision whereas the claimant, with whom we are concerned in the present appeal was injured seriously so such so that he was hospitalised for a period of about one month and a half and was discharged only after his left leg had been amputated below the knee. It may be mentioned here that the driver of the vehicle was prosecuted and even convicted in criminal proceedings. The driver of the other vehicle B was not even prosecuted but in the criminal proceedings against the driver of vehicle A  he was one of the witnesses for thewas in these circumstances that the application for compensation was filled by the claimant before the Accidents. Tribunal for recovery of compensation totally amounting to Rs.Out of this compensation, a sum of Rs. 9,953.25 ps. was claimed as special damages for the medical expenses and expenses connected with the medical expenses such as conveyance charges etc. The balance of the amount was claimed as damages for pains and sufferings, loss of income and general damages for loss of life enjoyment. The claim was made against respondent No. 1 being the owner of vehicle B and against the Insurance Company with whom the said truck B was insured. They were arrayed as Opposite Party Nos. 1 and 3 respectively. The claim was made also against the owner of truck A and the Insurance Company who were arrayed as Opposite Party Nos. 2 and 4 respectively. In the present appeal, they are arrayed as respondent No. 1 to 4 , respondent Nos. 1 and 2 being the owners of vehicles B and A respectively and respondent Nos. 3 and 4 being the insurers of vehicles B and A respectively. The claimants contention in the application was that the collision between the two vehicles was the result of the negligence on the part of the drivers of both the vehicles. Hence he claimed the said amount of Rs. 77,500/jointly and severally from both of the owners and from both the Insurance Companies concerned.Both respondents Nos. 1 and 2 denied the allegation of negligence on the part of their respective drivers. On these pleadings, issues were framed by the Tribunal and parties went to trial and led their evidence. The claimant examined himself as also the Police Officer who had made Panchanama of the accident. The panchanama was also got duly proved through the said officer. On behalf of respondent No. 1, the cleaner who was accompanying the driver of the truck B at the relevant time was examined. No evidence was led on behalf of respondent No. 2 Even the driver of truck A was notexamining all theevidence, oral and documentary, the Tribunal found that the collision between the two vehicles was the direct result of the gross negligence on the part of the driver of truck A . He absolved the driver of truck B of negligence. As regards the quantum of compensation, the Tribunal held that damages, both general as well as special, to the extent of Rs. 33,000/were proved by the claimant. Hence, he passed an award for the said sum of Rs. 33,000/in favour of the claimant together with costs which were quantified at Rs.the Tribunal further held that the policy of insurance given by respondent No. 4 was not required to cover the risk to life or body of the owner of the goods, who had hired the truck for transportation of the goods and who was the passenger in the truck. This conclusion was arrived at by the Tribunal principally upon the reasoning that under section 95 of the Motor Vehicles Act, the risk to a bona fide employee of the hirer of the truck of his goods was required to be covered by a policy of insurance, but the hirer himself, if he was a passenger in the truck, was not required to be covered by the said policy. The Tribunal found that the policy covered only that risk which was required to be insured against by the Motor Vehicles Act and the policy did not cover the risk which was not compulsory to be covered. It was with this reasoning that theis the liability of the Insurance Company, respondent No. 4, was arrived at by the trial Court. A decree for the said sum of Rs. 33,000/was, therefore, made executable by the Tribunal against respondent No. 2 and against no one else.It may be mentioned here that about one factual position there existed no dispute before us. The factual position resulting from the nature of the decree passed by the Tribunal is that the decree obtained by the claimant is more or less a paper decree. As stated by Shri Kurdrolli, the learned Advocate appearing for the claimant before us, and not seriously disputed by Mr. Chaphekar appearing for the Insurance Company, respondent No. 4, truck A which met with the accident was an old, dilapidated, worn out truck even at the time of the accident itself. It was further damaged by virtue of the accident. Respondent No. 2 sold away the same almost as junk after the date of the accident. The resultant position as at present is that there is no property which respondent No. 2 is known to be having against which property the decree obtained by the claimant can be executed. Unless, therefore, the decree is passed either against respondent No. 1 or unless it is made executable against respondent No. 4, the decree becomes nothing but a paper decree in the hands of the maimedlast mentioned fact probably explains the reason why respondent No. 2 against whom the decree is passed has not cared to file any appeal against the same. Even before the Tribunal, no appearance was filed on behalf of him. Opposite Party No. 4, the Insurance Company, with whom said truck A was insured took part in theof the material witness but only to the extent of their liability under the policy. As regards appeal against the award of the Tribunal, only the claimant has filed against the above order contending that the amount of compensation awarded to the claimant is extremely inadequate.

Reasoning:
It may be mentioned that the last mentioned point was the main point on which extensive and elaborate arguments were advanced and that is the point which is referred to at the outset of this judgment. However, we will deal with all the points in the order mentionedhave gone through the evidence on record. From the claimants admission in the evidence, we find that according to him he himself was in possession of the shop till the year 1976. This means that not for 4 years but for 3 years from the date of the accident the claimant was losing the monthly income of Rs.If the evidence on record is believed, it cannot be said that till the end of the year 1976 the claimant was earning anything from the shop, because the possession of the shop was given over by him after the year 1976. It will be, therefore, reasonable to hold that till the year 1976 the claimant was deprived of the income which he was earning. This makes the total period at the most to 3 years, if not less. To err on the safer side, we hold that it would be for the period of 3 years and not less. But even then, the total loss that can be computed would be Rs.Out of this, a sum of Rs. 7,800/is already awarded by the Tribunal. The claimant, therefore, should be entitled to a sum of Rs. 7,200/So far as the second point urged by Mr. Kudrolli is concerned, we do not find any material with which we can find fault with the view taken by the Tribunal, namely that for pains and sufferings and for loss of enjoyment of life the amount of Rs. 15,000/would be adequate. It can hardly be gainsaid that while computing these general damages some element of arbitrariness is inescapable. It is true that the Tribunal has not given any indication as to upon what principle the amount of Rs. 15000/was fixed by it. But from the very nature of things, no hard and fast rule can be laid down for fixing such compensation. Mr. Kudrolli was unable to indicate any principle upon which we could interfere with the finding recorded and conclusion arrived at by the Tribunal. With all the sympathy for the claimant, we find no legal basis on which we can find fault with the finding. We are, therefore, unable to interfere with this finding of themay briefly state here the reasoning that prevailed upon the Tribunal for absolving respondent No. 4 of its liability. When we say that the Tribunal absolved respondent No. 4 of its liability, what we mean is that the Tribunal held that the Company did not owe any liability at all as per its insurance policy at all, towards the claimant for any act of negligence committed by the driver of truck A in which the claimant as a hirer of the truck was a passenger. Briefly speaking, the Tribunal relied upon the provisions of Clause (ii) of the proviso to section 95(1) of the Act and has held that the risk involved for the hirer of the vehicle hired by him for carriage of his goods was not required to be covered by any insurance policy if the hirer was one of the passengers in the truck. The Tribunal has construed the said proviso to mean that if the hirers employees were being carried by truck A at the time when the truck was hired by the claimant, the insurance policy would have to cover the risk to such employees of the hirer, butuot the hirer himself, if he was one of the passengers of the truck. There was no statutory obligation upon the owner of the truck to insure the risk so far as the death or bodily injury to such hirer wasthe above provision, it is clear that certain risks which are inevitably involved in the transport of motor vehicles are compulsorily required to be insured under the Act by the owner of the vehicle concerned. The analysis of the above section shows that as per Clause (b)(i) of said section 95(1) the policy of insurance which is compulsory for the owner to take must insure any person against any liability which may be incurred by the owner of the vehicle for death or bodily injury to such person. In other words, if said Clause (b) (i) of said section 95(1) remains as it is, the owner of the truck B, in which the claimant who was the hirer of the truck was the passenger, would be under the statutory obligation to insure the risk involved to the claimant even as a passenger of the truck. So far as this much legal position is concerned, we may state here that there can be no doubt about this position and in fact there was no dispute about this legal position before us. The only question that arises is as to whether there is any exception to this statutory obligation contained in said Clause (b)(i) of section 95(1) carved in vay other part of this section or in any other provision of the Act. Contention before the Tribunal, and before us as well as before the various other High Courts was that Clause (ii) of the proviso to said section 95(1) carved out such exception. The proviso is already set out above. It states that unless a 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, it will not be necessary to insure against the death or bodily injury of any passenger in the vehicle. In other words, said Clause (ii) of the said proviso not only carves out an exception to the general rule contained in(ii) of Clause (b) to section 95(1) but it also carves out an exception to the exception. The first exception is that so far as the passengers in the vehicle are concerned, there need not be any coverage for the risk to their lives orthe word reward in the instant provision connotes consideration. No other meaning is capable of being ascribed to it. A paraphrase of the said proviso Clause (ii) can be that if the passenger is being carried for some consideration being received by the owner of the truck, such owner is under a statutory obligation to insure against the risk involved to suchfacie, our view was that there should be no legal impediments in coming to the conclusion that he was such a passenger, meaning thereby a passenger who was being allowed by the owner of the truck to travel as a passenger of the truck as against the consideration received by the owner of the truck. After hearing fully Shri Chaphekar against this view, we are of the opinion that this prima facie view taken by us stands fully confirmed. We found nothing in the arguments made by him which could persuade us to take a differentspeaking, therefore, an analysis of the statutory provision should not lead one to the conclusion that a hirer of a vehicle who is a passenger in the vehicle should not be entitled to have the risk to himself covered by the insuranceabove submission was with reference to the evidence on record. The submission with reference to the general principles of law was that when a vehicle is hired for transport of goods, there need be no term of carrying the hirer or his employees along with the goods. If, therefore, the hirer does travel along with the goods his travel must be held to be without consideration unless it is specifically proved.Prima facie the argument appears to be somewhat plausible and attractive. 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 goods 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 any other purposes incidental to the transportation of the goods. For instance, a 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 go 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 enter 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, alongwith 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 of goods for necessary 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 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.13. The plea that for carriage of the hirer alongwith the goods or for fetching the goods must be backed by special or additional consideration and that his carriage cannot be read as an implied term of all such contracts is unacceptable for the same reasons as mentioned above. The consideration is normally a composite consideration. Moreover, the carriage of the hirer or his employees alongwith the goods or for fetching the goods is essentially an incidental part of the contract of carriage. For such incidental services, no special consideration is expected. That incidental service is an implied term of the contract. For instance a passenger in an omnibus can carry with him a small brief case. For carrying that brief case no special or additional ticket is necessary. But that does not mean that no consideration is paid. The price already paid for the ticket is itself the consideration.To our mind the above analysis answer both the submission; the submission based on the evidence on record as well as the submission based upon the general law. We do not think that there exists any necessity for any special evidence on record for coming at the above mentionedsimple answer to this question is that it might be perfectly open for the owner of the truck to put such a condition. But if such condition was put, it would be equally open for the owner of the goods either to accept that condition or not to engage him as a carrier of the goods. But the point is that the very fact that the owner of the truck allowed the owner of the goods to go with the vehicle as a passenger in the truck means that there was no such condition put by the owner of the truck. The very fact that the owner of the goods was allowed to be carried by the owner of the truck serves as the evidence to the contrary of the fact that he allowed the owner of the goods to travel as a passenger of the truck and this permission was a part and parcel of the entire contract of carriage.The analysis of said Clause (b) to the proviso sought to be made by Mr. Chaphekar cannot, therefore, be accepted bythat much point is he right. The fact that truck A was a good vehicle cannot beis no dispute that truck A" answered to this description and hence it was a goods vehicle. But the construction sought to be put by Mr. Chaphekar upon Rule 118 is difficult to be accepted. Said Rule 118 allows the carriage of passengers of goods vehicle in certain circumstances but, that does not mean that there is any prohibition against the hirer of goods vehicle from travelling in the said gods vehicle by virtue of anything contained in said Rule 118. In the first place, the persons who are to be carried free of charge, as per the said rule, are the only bona fide employees of the owner or the heir of theour mind, this is a confused reasoning. In the first place, Rule 118 could not have an over riding effect over the section for the very simple reason that the rule cannot have dominance over the Act. Moreover, the rule is a regional provisions whereas the Act is of all India application. But more important than the above consideration is the fact that there exists no conflict whatsoever between Rule 118 and Clause (b) of proviso to section 95(1). Under the said Clause (b) to the proviso, the persons to be carried for hire or reward are the passengers other than the employees concerned. The employees may be the employees of the owner or the heir. The employees need not be carried for reward. The words "carried for reward" apply to the passengers other than the employees. This is clear from the fact that the words "passengers carried for hire or reward" are used in contradistinction with the words "by reason of contract of employment". Moreover, we are of the view that the word "reward" used in Clause (b) of the proviso to the section has a distinctly separate connotation from the word "free of charge" in Rule 118. The reward that is paid within the contemplation of the proviso to the section is the reward by the owner of the goods to the owner of the vehicle. The charge contemplated by Rule 118 is by the owner or hirer of the vehicle to his own employees. In other words, if the owner or the hirer charge any consideration even to his own employees for being carried by the goods truck, such carriage is not permitted by Rule 118. In order that the hirer or the owner of the goods vehicle can allow his bona fide employees to travel by the vehicle, it is imperative that they should not be required to pay any special charge at all for the said carriage.To our mind, this is perfectly is keeping with the general tenor of the raw. A goods vehicle is essentially meant for carriage of the goods. As mentioned above, along with the goods, passengers sometimes are required to be transported for the purpose of say loading or unloading of the goods. From the very nature of the things, the owner or the hirer of the truck cannot tell such employees that they should pay charges for their conveyance. The goods vehicle is not intended for earning monies by transportation of human beings on the goods vehicle. The goods vehicle is engaged essentially for transportation of goods and goods only and the employees are transported alongwith it because the transportation of the goods itself would be rendered difficult if such employees do not accompany the goods. In other words, the transportation of the employees is incidental. It can be only without consideration and that is the reason why we find that unless the employees are carried in such goods vehicle free of charges, it would not be a goods vehicle. If the employees are charged for transportation by goods vehicle, it would cease to be a goods vehicle. It would become a public service vehicle within the meaning of theany amount is to be charged to the passengers in any vehicle, then such vehicle must be adapted for carriage of passengers. Passengers can be carried for hire or reward only by a public service vehicle not by a goods vehicle. This is all that said Rule 118 contemplates. It is wrong to find any conflict between said Rule 118 and said Proviso (b)(ii) to section 95(1) of thedo not propose to refer to the elaborate reasoning of the said Court while arriving at the conclusion, because this judgment has been toned down by the subsequent judgment of the Supreme Court and hence the law has been restated in that perspective by a subsequent Full Bench judgment of the Gujarat High Court and secondly because the question with which we are concerned did not directly arise in that case. In our case, there is no contention that the insurance cover would not extend to any passenger of a goods vehicle whatsoever. The limited contention in our cases is as to whether the owner of the goods who has hired the truck and who is a passenger on the truck is covered by the insurance policy given by the Insurance Company orhave examined the said authorities fully and we are of the view that the explanation sought to be given to the said Full Bench authority by the Tribunal is not justified at all. To our mind, the view taken by the Full Bench of the Gujarat High Court, with great respect, fully supports the view which we have taken above. To our mind, all that Full Bench has done is that it has found the earlier Division Bench ruling of the Gujarat High Court to be of a too broad and sweeping character. By a virtue of the said view, every passenger in the goods vehicle was likely to be covered by the insurance risk and if that was the position then the exception clause contained in Clause (b) of the proviso to section 95(1) would be rendered meaningless. That view of the Gujarat High Court was certainly at variance in or in conflict with the view expressed by the Supreme Court in the abovementioned Pushpabais case. But the Gujarat Full Bench has not gone to the extent of stating that in no case a hirer of the goods vehicle for transport of his own goods would be covered by the insurance policy required to be taken by said section 95. The Full Bench takes the view that certain category of passengers travelling in the goods vehicle would be required to be covered by the insurance policy, whereas the other category of passenger need not be covered. The Full Bench gives a clear indication of the fact that if the passenger in a goods vehicle was being carried for hire or reward, then such passengers would be required to be covered by the insurancequestion did not directly arise for the consideration of the full bench of the Gujarat High Court because the full bench was deciding an abstract question referred to it by the Division Bench not with reference to the facts of the particular case but with reference to the provisions of law with particular reference to the provisions of the Motor Vehicle Act in the context of the above mentioned Supreme Courts judgment in Pushpabais case. We are unable to see anything in the Full Bench decision which supports the view that the risk involve to the owner of the goods who has hired the vehicle for transport of his goods and who is a passenger on the vehicle at the time of the said transport is never required to be covered by the insurance policy required to be taken by the owner of the goods vehicle inrespect, we are in complete agreement with the above analysis and reasoning of the learned Judges of the Karnataka Highwill be thus seen that the principle that the Andhra Pradesh High Court and the Madras High Court located in this connection is the principle of practical or business reasons. The owner of the goods was travelling in the goods vehicle not for any fun or for a joy ride. He was travelling for the business purpose. This principle of business purpose is evolved out of the underlying principle of the proviso to section 95(1) indicated by the words "for hire or reward".With respect, we are in complete agreement with this view of the matter.It is true that the Andhra Pradesh High Court in the above mentioned Meesala Suryanarayanas case arrive at the above mentioned conclusion also by virtue of the fact that the policy of insurance was not produced before the Court and hence the Court proceeded to take the view that the policy contained no prohibition against the carrying to such passengers as the owner of the goods. In this view of the matter, it was probably not necessary for the Court to consider as to whether it was open for the Insurance Company to excluded its liability towards such passenger. But we are satisfied that having regard to the observation in para 20 of the said judgment which is extracted above, the High Court was of the view that there existed a statutory liability upon the owner of the goods vehicle to insure his own liability towards the hirer of the truck for goods transport when the hirer is himself one of the passengers on the truck with the consent of the owner of the truck or his agent.There were other authorities which were also sought to be relied upon. But it is unnecessary to refer to all ofgreat respect, we are unable to agree with the above reasoning. We have examined the earlier Full Bench decision of the Punjab High Court. To our mind, the learned Judges addressed themselves more to the question as to whether the passenger in the goods vehicle was required to be in the employment of hirer or owner of the vehicle or not. We do not find that the Court addressed itself to the question as to whether in given circumstances, the hirer of the goods vehicle could be said to be travelling by the vehicle for reward or not. In fact, the above mentioned principle of "practical or business reasons" on the basis of which the words "for hire or reward" in the said proviso to section 95(1) are construed does not appear to have been urged before the Full Bench of the Punjab High Court at all nor does it seen to have been urged before the learned Single Judge of the same Court in the subsequent case of Oriental Fire and General Insurance Co. Ltd. v. Kasturi Lal and another, 1968 A.C.J. p. 227 which we have referred to above. To our mind the fact that the hirer of goods vehicle who is the owner of the goods carried by the vehicle and who is a passengers of the vehicle at the time of the carriage, does not answer the description of being an employee either of the owner or here of the truck does not mean that he does not fall in the other category of passengers who are required to be covered by the insurance.The above authority of the Punjab High Court in Kasturi Lals case was followed by the Madras High Court in the case of (The Commonwealth Assurance Co. Ltd. Bombay v. V.P. Rahim Khan Sahib and others)8, 1971 A.C.J., p. 295. The Court held that an owner of the goods accompanying the goods in a truck cannot be said to be travelling in the truck by virtue of any contract of employment. But as we see, even before the Madras High Court the point that the owner of the goods accompanying the goods in the truck hired by him answered the description of the passengers who was being carried for hire or reward was not urged before the learned Single Judge.With great respect, therefore, we are unable to occur with the ultimate conclusion arrived at by the said Court.We are of the view that the better view as between the two act of authorities is the one to which we have arrived upon the analysis of the statutory provisions. We are of the view that when a hirer of a goods vehicle for carriage of his goods is travelling by the said vehicle in connection with the carriage of the goods with the consent of the driver or owner of the goods vehicle in question, he must be deemed to be a passenger on the vehicle for reward within the meaning of Clause (ii) of a proviso to section 95(1) of the Act and hence the tortious liability of the owner towards him must be covered by the insurance policy contemplated by the said section.We are of the view that the Gujarat High Court and Karnataka High Court on this point is in consonance and in keeping with the provisions of the statute. We do not agree with the view expressed by the Tribunal that the earlier view expressed by the Gujarat High Court in 1974(XV) Gujarat Law Reporter 428 (Sakinabibis case) is over ruled by the Full Bench of the Gujarat High Court. The fact that it is toned down does not mean that its view is completely overruled. To our mind the essential part of the earlier Gunarat decision still holds good and it is the correct exposition of law.