Except v. RAMANBHAI K CHAUHAN

CORAM : Mr. Justice N.J Pandya and MR.JUSTICE A.R.DAVE Date of decision: 16/09/96 ORAL JUDGEMENT(Per N.J.Pandya,J.) In all 34 appeals were filed in respect of a common award that came to be passed by Motor Accident Claims Tribunal, Panchmahal at Godhra in as many matters. However, at admission stage, 4 of the appeals came to be dismissed as the amount involved therein was between Rs.2500/- to 5000/-. We are therefore, left to deal with the remaining 30 appeals which we do by this common judgment.

2.(cid:9)The incident leading to the aforesaid claim petitions occurred on 11th March 1987 at about 6.45 p.m. on Highway between Dahod and Godhra. A truck bearing Registration No.GRY 4024 had turned turtle at the (cid:9) (cid:9) (cid:9) (cid:9) curvature of the highway near village Jakot. The truck was loaded with fertilizer bags. Over and above these goods, the truck was also carrying passengers, who had boarded the same with their respective goods. They had boarded the truck from Dahod.

3.(cid:9)As if this is not enough, at the place of the incident, there were going on by the side of the road some pedestrians. Four of these pedestrians were crushed under the fallen truck. In all there were 24 fatalities and 10 persons were injured. That is how, 34 claim petitions came to be preferred before the trial Court claiming different amounts and the trial Court by its judgment dated 15-4-1993 held the driver, owner and the Insurance Company jointly and severally liable for the different amounts that it awarded in respect of different claims.

4.(cid:9)Needless to say, in case of fatal accidents, it was the heirs of the respective deceased who approached the claim tribunal and in case of injured , they themselves had filed their respective petitions. A statement giving details of the claim petitions correlated to the respective first appeals also containing the details as to the amount claimed and the amount that came to be awarded is produced on record.

5.(cid:9)The admitted position is that the truck in question was a goods vehicle. It was, in fact, carrying fertilizer bags. The panchnama on record indicates as such and there is no controversy in this regard. There is also no controversy that the persons were travelling in the truck. The controversy is , no doubt, as to they being fare paying passengers or according to the claimants, they being persons travelling along with their goods after paying charges for carriage of goods.

6.(cid:9)This aspect is not required to be considered at all in respect of the pedestrians. With regard to the pedestrians the case of the Company is to the effect its liability is limited. With regard to the passengers in the truck, the case of the Company is that the carriage of the passengers being in breach of the terms and conditions of the policy, the Company is not liable at all.

7.(cid:9)One would have thought that so far as Gujarat is concerned, this controversy does not survive any more. The reason is two Full Bench decisions of this Court where this aspect has been elaborately considered. They are 23(1) GLR 411 Nathibai's case and 34(1) GLR 779 known as Kamalaben's case. However, in both the cases, the persons travelling in the goods vehicle were not found to be in excess of the limit prescribed in Rule 118 of the Motor Vehicles Act, 1939 read along with the prescribed form of permit issued thereunder.

8.(cid:9)In first of these two decisions i.e. Nathibai's case, the learned author of the judgment Justice P.D.Desai, as he then was, has more than once referred to the limit of 7 persons prescribed in Rule 118 and had, on different occasions, in the course of the judgment stated that if the persons travelling along with the goods are within the limit prescribed in Rule 118, the Insurance Company cannot putforth a defence of breach. The limit prescribed is 7 persons.

9.(cid:9)The occasion before the two Full Benches of this Court arose to consider the aspect of persons travelling with the goods because the policy issued by the respective Companies in these two matters did contain a condition that there is limitation as to use of the vehicle. The limitation was connected with the terms and conditions of the permit issued under the provisions of the Motor Vehicles Act 1989, as also, the terms and conditions of the permit which a goods carriage vehicle has to have pursuant to Sec.42 of the Motor Vehicles Act 1939 read with Sec.44, 54, 55 and more particularly 56(2) with condition No.9 being emphasised upon by the Company.

10.(cid:9)Reference is also made to Section 59 which indicates general conditions attached to all permits as per sub-Section 3(d)(f).

11.(cid:9)One more dimension required to be considered in the instant case is that the aforesaid vehicle involved in the incident was said to be having national permit and the fact that it was having national permit is brought on record and is admitted by both the sides. There is a dispute between the parties as to whether the national permit so issued is on record or not? According to the appellant-Insurance Company, the national permit so issued is on record, while according to the respondents, it is not produced on record. So far as the permit pursuant to Rule 118 required to be issued by State Authorities under Sec.42 read with the remaining provisions mentioned hereinabove is concerned, one thing is certain that it is not on record at all. In this background, so far as the dispute as to permit is concerned, Exh.137 is to be looked at with the deposition of RTO Clerk at appropriate stage.

12.(cid:9)The controversy thus revolved around the fact that even if Rule 118 is attracted, as interpreted by the aforesaid two Full Bench Judgments and if the benefit thereof is to be given to the claimants, when they were far in excess of the limit of 7 persons thus permitted to be carried, no such benefit can be given to the claimants and instead, the trial Court ought to have held that there is a clear breach of the terms and conditions of the Policy referable to the breach of the permit itself.

13.(cid:9)The learned Advocate Mr.P.V.Nanavati, to his credit must be said, while appearing for the appellant-Insurance Company had taken utmost pains and had tried to cover the aforesaid controversy from as many different angles as possible.

14.(cid:9)He had also in mind a submission which in fact was made that the aforesaid two full bench decisions are either suffering from the vice of subsilentio or they can be found to be vulnerable on the principle of they being per incuriam. For the reasons to be stated hereafter, we do not find any of these infirmities in either of these judgments.

15.(cid:9)The learned Advocate for this purpose had drawn our attention to the decision given by the Apex Court and reported in AIR 1959 SC 79 It is a case dealing directly with the punishment that can be awarded for breach of the provisions of the Motor Vehicles Act 1939 which under the circumstances, would also include breach of the concerned Rule which in the instant case is Rule 118. Obviously, when the question of breach of the provisions of an Act or a Rule framed thereunder is being considered from the angle of visiting the persons responsible for the breach with penalty, the interpretation has to be in light of that fact situation.

16.(cid:9)Of necessity, the contract of Insurance is between the owner of the vehicle and the Insurance Company. The Insurance Company is obliged under the provisions of Motor Vehicles Act 1939 Chapter VIII to issue a policy undertaking to indemnify atleast to the extent prescribed by the Act and the indemnity is in favour of the owner but in fact, it is for the benefit of the public at large, the claim being awarded by the Tribunal in matters arising out of use of vehicle in a public place as its route for substantive law in the law of Torts and the form prescribed for the purpose is to be found in the Motor Vehicles Act Sec.110 onwards. Recognising also the fact that mere providing a special form will not lead to alleviating the position of the public at large, compulsory insurance was thought of in form of Chapter VII and the sole purpose of introducing this element of indemnity via Insurance Company was to see that the claim having root in the Law of Torts, it is not merely a paper decree or a bond, which it would be in most of the cases, because the truck owner/driver are likely to be a man of straw rather than a man of substance.

17.(cid:9)It is in this background, that the Insurance Company steps in and while issuing the policy, is enjoined by the Statute to discharge this larger social obligation. This has been well brought out in the decision of the Honourable the Supreme Court reported in AIR 1987 SC 1184 (Skandia Insurance Co. Ltd. appellant vs. Kokilaben & Ots.

18.(cid:9)Para 13 page 1189 of the judgment brings out this purpose of incorporating the principle of compulsory insurance in the Motor Vehicles Act, 1939 beautifully. The learned Judge has categorically stated that whenever two views are possible with regard to either the breach of policy condition or permit, of the two views, if one is found to be favourable to the furtherance of the underlying principle and the beneficial policy towards the public at large that view is to be preferred.

19.(cid:9)The aforesaid two full Bench Decisions of this Court namely Nathibai's case and Kamalaben's case have done precisely that very job and if one might say, very admirably. The controversy, ordinarily therefore, as stated earlier, would not arise but for the fact that the persons travelling in the vehicle were in excess of the limit prescribed by Rule 118.

20.(cid:9)Thus, for the purpose of making out its defence of breach of terms and conditions as also, the conditions of permit, in our opinion, the various decisions relied on by L.A. Mr.Nanavati are hardly of any purpose. The learned Advocate has carried his submission to the extent of saying that because the rules framed are under an Act they are to be taken as statutory Rules and therefore, they should be given the same effect as one would give to the provisions of the Act itself. For this, the learned Advocate has relied on ;AIR 1961 SC 751 with remarks at page 761, AIR 1963 SC 274 and 1996 SC 1150.

21.(cid:9)No doubt, the last mentioned of the aforesaid 3 cases does have a bearing on the controversy before us. In that case, before the Honourale Supreme Court, the driver was found tobe having a learners licence and the defence of the Company was that according to the terms of the policy, it could be made liable only if the persons driving the vehicle was ha ving a regular valid licence. Interpreting Rule 16 read with the relevant provisions of the Act, the Honourable the Supreme Court has laid down that the learners licence is no licence at all and therefore, so far as the aforesaid defence is concerned, it must be accepted because the person driving was having no licence.

Except for this, about the Rules being statutory, there cannot be any controversy.

However, it should not be lost sight of that Rules cannot bring about any change in the substantive act nor could it override the provisions of the Act itself. In this background, if Rule 118 is seen, the limit of 7 persons that could travel in case of the truck involved in the incident, is largely from the point of view of the safety of the persons so travelling. The purpose of issuing the permit is not to restrict the number of persons. The purpose of issuing the permit under Rule 118 is to see that it is issued for the purpose for which the vehicle is registered namely goods vehicle. The carrying of passengers travelling with the goods is incidental.

23. In this background, merely because more number of persons are travelling could it be said that the truck was not used for the purpose for which the permit was issued. The answer, in our opinion, has to be in the negative.

Almost an identical fact situation was dealt with by the Bombay High Court in a case reported in 1986 ACJ 460. 16 persons were travelling in the truck with the respective goods. The truck turned turtle and crushed two of the pedestrians. No doubt, the appeal before the Honourable Bombay High Court was in respect of the claim preferred by the heirs of the deceased pedestrians. The question of rule 118 therefore, was not directly involved. It was the Insurance Co. that had agitated the question as one of its submissions that carrying of passenger in excess of the limit prescribed by Rule 118 would amount to a breach of the terms of the policy condition because it is in violation of the purpose for which the permit was issued. Justice B.P.Savant, speaking for the Bench has in categorical terms held that violation of a Rule like 118 could not be construed as changing the purpose for which the vehicle was used at the relevant time. The purpose of goods vehicle is to carry goods and that is the purpose for which the permit is issued. Carrying of passenger in excess of the limit would not change the purpose. This discussion is to be found in paragraphs 7 & 8 of the judgement at plages 462 and 463. Noting that the permit is for carrying goods, the carrying of persons is not prohibited absolutely. Carrying persons in excess of the limit would be breach of the condition of the permit issued for plying the vehicle. Noting that the vehicle was however being used essentially for carrying the goods, it cannot be said that the vehicle was not being used for the purpose for which the permit was issued. Thereafter, the learned Judges have expressed themselves to the effect that a breach of the condition of the permit is not the same thing as a breach of the purpose for which it is issued. Contravention of one part of a condition of the permit is not a contravention for the purpose for which the permit is issued. In our opinion, this would answer the contention of the learned Advocate Shri Nanavati. In any case, we are of that very opinion and we wholeheartedly agree with the opinion expressed by the learned Judges of the Bombay High Court.

Once it is found that by committing breach of one of the conditions of the terms of the permit, the purpose for which it is issued is not given away, or it hasnot exhausted itself, after looking to the policy unless it is found that the defence taken thereunder is available to the Company, its contentions will have to be rejected. Before doing that, we will have to deal with the remaining contentions of learned Advocate Mr.Nanavati. He had submitted that ratio of the judgment should be read in the background of the case and for which purpose, he was relying on AIR 1987 SC 1073. We wholeheartedly agree with the principles laid down in this decision and keeping that in mind only we have applied the various cases cited at the bar by the respective sides.

We are conscious of the fact that the aforesaid decisions are cited with regard to Nathibai's case and Kamalaben's case as well as the aforesaid Bombay decision reported in 1986 ACJ 460. In para 5 of that Bombay Judgment, the learned Judges have observed that the case is confined to the controversy in connection with the two pedestrians. However, while noting the contention in para 7 of the judgment as summarised above, the contention with reference to Rule 118 as raised by the Company has been dealt with in para 8 in the manner stated above. The judgment in our opinion, therefore, thus lays down a ratio with which we are in agreement.

So far as the judgments in the cases of Nathibai and Kamalaben are concerned, they will be dealt with separately hereafter.

The learned Advocate had cited 3 judgments--AIR 1984