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Gujarat High Court
Judgename :D.C.Srivastava, H.K.RATHOD
NEW INDIA ASSURANCE COMPANY LIMITED - Appellant
Versus
BABAN KASHINATH PANDE - Respondent
First Appeal1034 of 1986
Decided On : 07/24/2000
There was no violation of Clauses 1 & 2 of the terms of policy, likewise there was no violation that the vehicle was not used under a contract carriage permit. For this the onus lay upon the Insurance Company to obtain and file copy of permit to disclose that it was not used under a contract carriage permit.
Even according to the appellant the vehicle was to be used as contract carriage and since it was so used it cannot be said that there was breach of terms and conditions of the Policy. Consequently, the Insurance Company cannot escape liability and it is liable to compensate for the loss of property to the extent of Rs. 1,50,000/- and for personal injury to the passengers to an unlimited extent. The view taken by the Tribunal, therefore, does not appear to be incorrect. Court does not find any merit in these two appeals which are liable to be dismissed.
[Para 21]
(b) Motor Vehicles Act, 1939 (Central Act 4 of 1939) - Appeal with cross-objection against award of MACT - The liability of Travel Agency in control of vehicle at the time of accident - Objected as the driver was employed by owner of vehicle - Held, since the vehicle was in full control of Travel Agency and no evidence is brought on record about any internal arrangement between owner of vehicle and Travel Agency in Control of vehicle, it cannot be said that driver of vehicle was not employed by Travel Agency - Travel Agency cannot escape from vicarious liability of his servant - In absence of any privity of contract between Insurance Company and the Travel Agency the appellant (Insurance Company) is not liable to reimburse the Travel Agency - No merit in appeal as well as in cross-objection hence, dismissed.
Since there is no evidence regarding internal arrangement between M/s. Bagga Travels and M/s. Punjab Travels under which the bus was handed over to M/s. Punjab Travels it can be said that the driver could have been employed by Punjab Travels. If the accident took place due to rash and negligent driving of the bus by the driver which is established, the driver is liable to pay the compensation. Under the law of Torts the master of the driver will be vicariously liable on the principle of vicarious liability of master and servant. In that view of the matter M/s. Punjab Travels can be escape liability to pay compensation. Likewise M/s. Bagga Travels being the owner of the bus cannot escape liability to pay the compensation. The Bus owned by M/s. Bagga Travels was insured with the appellant. the Appellant is, therefore, liable to idemnify the owner, namely, M/s. Bagga Travels in case the claimants proceed to recover compensation from the owner. In this way ultimate liability rests upon the Insurance Co. to meet the liability under the award and to pay the compensation to the claiments. So far as liability of the Insurance Company to reimburse M/s. Punjab Travels is concerned Court finds that since there is no privity of contract between the Insurance Company appellant and M/s. Punjab Travels, the Insurance Company is not liable to reimburse M/s. Punjab Travels. In this view of the matter the Tribunal has rightly ordered that all the opponents are jointly and severally liable for the principal amount together with cost and interest.
[Para 22]
In view of the above observations, Court does not find any merit in the two appeals as well as in the cross-objections. Consequently, First Appeal No. 1034 of 1996 and 1036 of 1996 along with cross-objections are hereby dismissed.
[Para 23]
(c) Words & Phrases - Contract carriage and stage carriage.
The payment of fare by one or two passengers or by all the passengers individually does not change the nature of vehicle from contract carriage to stage carriage. On the other hand, the vehicle can be said to be stage carriage when it carries passengers for the whole journey or for stages of the journey and separate fare is paid by or for individual passengers either for whole journey or stages of journey. Thus, picking up passengers enroute and dropping them enroute for payment of separate fare will necessarily indicate that the vehicle was used and plied as stage carriage.
[Para 18]
( 1 ) ). THESE two Appeals and Cross Objections are proposed to be disposed of by a common Judgment.
( 2 ) BRIEF facts giving rise to these Appeals and Cross Objection are as under : luxury Bus bearing Registration No. MNP 3260 left Ahmedabad on 19. 12. 1982 at about 8. 00 p. m. It was carrying 35 passengers for Bombay. At the relevant time the bus was being run by M/s. Punjab Travels. The bus was actually, however, owned by M/s. Bagga Travels. Both these Travel Companies have their offices at Ahmedabad. In the night of 19. 12. 1982/20. 12. 1982 at about 2. 00 Oclock the driver of the bus lost control between Valsad and Kila Pardi on National High-way No. 8. The bus fell in the ditch and it was turned turtle. It was facing up-side down. Several persons sustained injuries. 5 passengers died and 4 were left with different injuries. The legal representatives of the deceased 5 persons and 4 injured filed different claim petitions claiming compensation. It was alleged that the accident occurred due to rash and negligent driving of the bus by the driver.
( 3 ) ). First Appeal No. 1034 of 1986 is arising out of M. A. C. Petition No. 12 of 1983 whereas First Appeal No. 1036 of 1986 is arising out of M. A. C. Petition No. 97 of 1983.
( 4 ) THE driver of the bus did not file any written statement. The two travel companies also did not file any written statement. It is only the appellant New India Assurance Company which filed written statement and that too at a late stage after the issues were framed. The bus was not owned by M/s. Punjab Travels. It was owned by M/s. Bagga Travels and was insured with the appellant. The statutory defence raised by the appellant before the Tribunal was that the Insurance Company is not liable because the permit was not filed and the bus was plied in breach of statutory conditions of Insurance Policy as well as in breach of Section 96 (2) (b) (i) (c) of the Motor Vehicles Act of 1939. The accident in question was not denied by the appellant. It was also pleaded that the bus was plied as "stage Carriage" and not as "contract Carriage" whereas the permit was of contract carriage and thus there was breach of the terms of permit as well as Insurance Policy.
( 5 ) THE Tribunal on this limited controversy raised by the appellant found that the bus was not plied in breach of the terms and conditions of the policy or the [ permit. The Tribunal also found that the permit was not brought on record. It further found that the Insurance Company is liable in respect of damage to the property to the extent of Rs. 1,50,000. 00 and there is unlimited liability of Company so far as personal injury to the passengers in the bus is concerned. With these findings the Tribunal awarded compensation of Rs. 2,83,000/together with 9 % p. a. interest in M. A. C. Petition No. 12 of 1983 as against the claim of the claimant amounting to Rs. 3,50,000. 00. Likewise as against the claim of Rs. 4 lacs in M. A. C. Petition No. 97 of 1983 the Tribunal awarded compensation of Rs. 2,37,000. 00 with 9 % p. a. interest.
( 6 ) THE quantum of compensation has not been challenged in these Appeals.
( 7 ) WE have heard Shri A. M. Kapadia, learned Counsel for and on behalf of Shri S. B. Vakil, learned Counsel for the appellant and Shri P. G. Desai, learned Counsel representing the two travel companies and also Shri D. R. Bhatt for Respondent No. 4 and Shri V. H. Patel for Respondents No. 6 and 7.
( 8 ) SINCE no application under Section 170 of the Motor Vehicles Act was moved before the Tribunal the appellant cannot challenge the quantum of compensation awarded by the Tribunal. Moreover the compensation has not been blindly awarded rather it has been judiciously examined and total claim set-up by the claim in two petitions under consideration was not awarded. Consequently the amount of compensation requires no reconsideration.
( 9 ) THE contention of Shri Kapadia has been that the Luxury Bus was to be used as Contract Carriage and
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