Maimuna Begum wd/o Abdul Razzaque Qureshi & others vs Taju s/o Ahmed Khan & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(Bom) 355

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
V.A. Mohta G.G. Loney, JJ.
Maimuna Begum wd/o Abdul Razzaque Qureshi others.... Appellants.
Versus
Taju s/o Ahmed Khan others.... Respondents.
First Appeal No. 167 of 1983, decided on 15-10-1987.
Advocates appeared :
G.S. Shukla, for appellant.
D.K. Darbhe, for respondent No. 1.
V.G. and M.G. Bhangde, for respondent No. 2.
D.N. Kukde, for respondent No. 3.

Headnote:BOMBAY MOTOR VEHICLES RULES, 1939
       Rule 119 (1).
       See Motor Vehicles Act, 1939, Sections 2(8), 96 (2) (b) (i) (e) and 112.

       MOTOR VEHICLES ACT, 1939
       Sections 2 (8), 96 (2) (b) (i) (e) and 112-(Now Motor Vehicles Act, 1988, Sections 2(14), 149 and 177)-Bombay Motor Vehicles Rules, 1959, Rule 118(1) -Goods truck carrying passenger-Passenger injured in accident-Liability Truck carrying passenger contravention of Rules-Owner not in truck-Insurance policy not covering passenger risk-Held, Insurance Company or truck owner cannot be held liable.
       The truck in question is a "goods vehicle" as defined under Section 2 (8) of the M.V. Act. Rule 118 (1) of the Bombay Motor Vehicles Rules, 1959 ("the MV. Rules") framed under the M V. Act prohibits carrying a passenger in a goods vehicle. Indeed, in do so is an offence punishable under Section 112 of the M.V Act Owner was not in the truck. He used to pay bhatta to the driver whenever the driver was sent outstation and had issued instructions not to carry the passengers. In courts now in this basic factual background, the Tribunal was justified in not holding the owner vicariously liable. No doubt the driver was driving the truck in the regular course of his employment but taking passenger was not only outside the scope of his employment and or authority but was a criminal act.

       Sections 95 and 96 (2)-(Now Motor Vehicles Act, 1988, Sections 147 and 149)-Bombay Vehicles Rules, 1959, Rule 118(1) - Carrying passenger by goods vehicle-Breach of provision of policy-Insurance Company-Not liable.
       The injured passenger was not a hirer of a truck, no doubt at that he was carried on payment of charges but the carrying of such passenger was in contravention of the Rules and in disregard to the limitation as to the use of the said vehicle. The subject of non liability of the insurer for breach of specific condition in the policy. The insurer in the case at hand cannot be held liable to pay compensation.
       Section 110-A-(Now Motor Vehicles Act, 1988, Section 166)-Succession Act, 1925, Section 306-Injured by goods truck-Claim of compensation n-Injured person died during pendency of appeal by him against award by Tribunal –Held, death will not per se nullify a decree to which his legal representative will be entitled.
       In the instant case, the award has not resulted into dismissal of a claim. Compensation is awarded under various heads noticed earlier, to the satisfaction of the injured in his life, time against a wrong doer. The injured was not satisfied with findings that (i) no vicarious liability arose (ii) insurer was absolved in terms of the policy of insurance. The injured merely challenged those findings in the present appeal and during its pendency unfortunately he died. The case of Pulin Beharilal v. Narendra Kumar, AIR 1971 Tripura 48 has taken a view that Section 306 of the 15 Act does not apply once a cause of action has merged into a decree of court and death of a party will not per se nullify a decree.

JUDGMENT - V.A. MOHTA, J.:---Abdul Razzaque who died during the pendency of this appeal under section 110-D of the Motor Vehicles Act, 1939 ('the M.V. Act') had lodged a petition under section 110-A of the M.V. Act to recover a sum of Rs. 2,05,890.27 P. as compensation for the injuries suffered by him a in a motor accident that took place in the evening of 14th July, 1976 on Nagpur Kamptee Road. The petition was filed against Taju Ahmad Khan, who during the regular course of his employment was driving Truck No. MHG 6167 owned by Shriram Ramteke and insured with the New Indian Assurance Company Limited, Nagpur. Abdul Razzaque was a resident of Kamptee and was serving as a binder boy at Government Press, Nagpur. On the fatefull day, the truck was returning empty from Nagpur to Kamptee after unloading the goods. On the way the driver Taju Khan gave lift to Abdul Razzaque, his friend Meshram and several others on payment of Rs. 0.50 each. The truck was already carrying the conductor and the labourers employed for unloading the goods. Owner Ramteke was not in the truck. Taju lost control over the vehicle on account of negligent driving, as a consequence of which truck dashed against the railing of the bridge and plunged into the bed of the river. Mashram died on the spot and Abdul Razzaque received several serious injuries as a result which he was admitted as on indoor patient in several hospitals for months together. Even after discharge, physical condition of Abdul Razzaque remained deteriorated. He was declared as invalid and was compulsorily retired from service. Damages to the tune of Rs. 95,000/- on various counts such as loss of earning, loss of earning capacity, physical and mental pain and agony, medical expenses were awarded by an Award dated 24-2-1981 passed by the Motor Accidents Claim Tribunal at Nagpur (the tribunal) but only as against the driver Taju, absolving the owner and the insurer, from the liability. Aggrieved by the rejection of claim as against the owner and the insurer, Abdul Razzaque has filed this appeal as an indigent person on 2-7-1981. Abdul Razzaque unfortunately died on 5-6-1982 and his widow and minor children have been substituted as appellants in his place. Their application for being brought on record in place of deceased Abdul Razzaque was opposed on the ground that right to sue did not survive. The application was granted subject to decision on the point in this appeal. Driver Taju was not challenged the award passed against him.

2. Against this basis factual back ground, the following, three points fall for determination in this appeal.

1. Whether the owner is liable?

2. Whether the insurer is liable?

3. Whether right to sue the owner and the insurer survives to the legal heris?

Point No. 1:---The truck in question is a "goods vehicle" as defined under section 2(8) of the M.V. Act. Rule 118(1) of the Bombay Motor Vehicles Rules, 1959 ("the M.V. Rules") framed under the M.V. Act prohibits carrying a passenger in a goods vehicle. Indeed, to do so is an offence punishable under section 112 of the M.V. Act. Owner was not in the truck. He used to pay bhatta to the driver whenever the driver was sent outstation and had issued instructions not to carry the passengers. In our judgment, in this basic factual back ground, the tribunal was justified in not holding the owner vicariously liable. No doubt the driver was driving the truck in the regular course of his employment but taking passenger was not only outside the scope of his employment and/or authority but was a criminal Act.

3. The first leading Indian decision on the point seems to be the case of (Sitaram Motilal Kalal v. Santanupradsad)1, A.I.R. 1966 S.C. 1697. Basic facts of that case were not an owner of a taxi entrusted it to M who appointed a cleaner C.M. also trained C for driving. C took the taxi to the office of the R.T.A. where the accident took place, due to negligent driving of C. Question arose where the owner was liable for the negligent

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