JUDGMENT
K.A. Puj, J.
1. This group of appeals arises out of the decision of the Motor Accident Claims Tribunal (Main), Banaskantha at Palanpur, dated 22-4-1997 in Claim Petitions Nos. 315, 207, 208, 209, 210, 250, 322, 323, 333, 334, all of 1983 and 66 of 1984. Out of the above 11 Claim Petitions, the Insurance Company has preferred 10 Appeals before this Court. The claimant in Claim Petition No. 315 of 1983 being Cleaner no appeal has been filed by the Insurance Company against the award passed by the Motor Accident Claims Tribunal. Since all the 10 appeals were filed against the common judgment and award passed by the Claims Tribunal and since the said appeals are in respect of one accident, and since all the claim petitions have been consolidated with Claim Petition No. 315 of 1983, and since the evidence of all the petitions have been recorded in Claim Petition No. 315/83, all these First Appeals are taken up for hearing simultaneously and they are being disposed of by this common judgment.
2. The brief facts, giving rise to the filing of the present group of appeals, are that a motor truck No. GTF-3256 met with an accident on 20.5.1983 in the Sim of Village Ratanpur, Taluka-Kankrej, District-Banaskantha. The said truck was returning from Village-Tatiyana after completing marriage ceremony and there were in all 63 persons of 3 Rabari families and their relatives in the said truck. There was also some luggage in the said truck while the said truck was coming from Village-Moti Chandur and going towards Radhanpur. The said truck fell down near Ratanpur Patia at about 5.00 O’clock in the evening as the respondent No.2 was driving the truck with excessive speed and he had lost control of the truck. As a result of this accident, out of 63 passengers travelling in the said truck, many of them sustained injuries and 3 passengers have died. The said accident gave rise to 11 Claim Petitions and the Claims Tribunal made 11 awards for varying amounts in favour of the claimants. Against the said 11 awards, the present 10 First Appeals as stated above were filed in this Court. A detailed Chart, showing First Appeal Number, MACP Number, Nature of Injury, Name of the Claimant, Amounts Claimed and Amount Awarded, is given hereunder:-
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First MACP No. Nature of Name of the Amount Amount
Appeal Injury Claimant Claimed Awarded
Number
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2562/97 207/83 Injured Rabari Sangrambhai 50,000 32,000
Punjabhai.
2563/97 208/83 Injured Rabari Balabhai 30,000 21,000
Raghunathbhai.
2564/97 209/83 Fatal Rabari Jabalben, 1,50,000 1,35,000
Widow of Karsanbhai
Malabhai.
2565/97 210/83 Fatal Rabari Jabalben, 1,50,000 1,25,000
Widow of Jalabhai
Jethabhai.
2566/97 250/93 Fatal Rabari Javaben, 1,50,000 1,00,000
Widow of Balabhai
Ramjibhai.
2567/97 322/83 Injured Karamben, W/o. 50,000 20,000
Devabhai Kunvarbhai.
2568/97 323/83 Injured Raghubhai Govindbhai 75,000 33,000
(Atr the time of
filing petition-Minor
now major.
2569/97 333/83 Injured Rabari Megaben, 50,000 30,000
Wife of Ramjibhai.
2570/97 334/83 Injured Rabari Ambalal 30,000 30,000
Jalabhai.
2571/97 66/84 Injured Rabari Gigiben, 75,000 42,100
Wife of Narsing-
bhai Karsanbhai.
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3. It is the case of some of the claimants before the Claims Tribunal that they were travelling in the said truck along with some luggage and that the said truck was hired by deceased Rabari Jalabhai Jethabhai for Rs. 1,000/=. It has also come in evidence that out of 63 passengers in the said truck, the claimants in First Appeals No. 2562, 2563, 2564, 2565 and 2571 of 1997 were travelling as labourers. It has further come on record that the claimants in First Appeals No. 2567, 2568, 2569, and 2570 were sitting near a heap of Kapachi which was lying at the place of accident and they sustained injuries on account of the said accident.
4. The Claims Tribunal has recorded the entire evidence in MACP No. 315 of 1983, and in all 12 witnesses have been examined on behalf of the claimants. The respondents No. 2 and 3 were the original-opponents No. 1 and 2 and were driver and owner of the truck respectively. The present appellant, being Insurance Company, was impleaded as opponent No.3 in claim petitions and on its behalf its Divisional Manager, namely, Shri Maheshwar Dahyabhai Rajan has been examined at Exhibit 104, whereas Medical Superintendent, Ramnarayanan Radhakrishna of Radhanpur has been examined at Exhibit 154 and several documentary evidence has been produced by the parties. The present appellant, in its Written Statement, has raised the contentions that the driver of the truck was not negligent for occurrence of the said accident and that he was not having a valid driving licence at the time of accident, and that he was not driving the vehicle as per the terms of the contract with the Insurance Company and that the Insurance Company had not covered any such risk. The present appellant has further raised the contention that there was no permission issued by RTO as per law, to carry passengers in the said truck and hence the Insurance Company was not liable. It was also ultimately pleaded that under no circumstance the Insurance Company is liable for payment of more than Rs. 50,000/=. A further contention was raised to the effect that the policy itself was void as the owner had taken the policy on the date of the accident. Thus, a fraud has been played on the Insurance Company by not supplying the particulars of policy and particulars of accident.
5. On the basis of the above facts and pleadings of the parties, the Claims Tribunal has framed three major issues, namely, (1) whether the applicant proves that on account of rash and negligent driving of truck No. GTF-3256 by opponent No.1, the said accident took place and in which accident three passengers died and some others were injured, (2) to what amount of compensation the applicant/s of each of the petition was entitled, and (3) out of the opponents, which opponent was liable to pay the amount of compensation and to what extent. The Claims Tribunal has threadbare discussed the evidence on record and after appreciating the same as well as after considering the legal position on the subject has come to the conclusion that the accident took place only on account of the negligence on the part of the driver and that the applicants were entitled to the compensation as stated in the statement produced hereinabove in this judgment and while deciding the issue No.3 the Claims Tribunal has considered the following three points regarding the liability of the Insurance Company:
(1) The insurance was taken on the date of the accident. The cover note was dated 20.5.1993. The said insurance was taken by suppressing material facts and hence the policy is void.
(2) The truck in question was a goods vehicle and breach of public carrier permit was committed and Rule 118 of the Rules framed under the Motor Vehicles Act was violated by taking the passengers in the truck by accepting fare and Rule 188 as well as the conditions of the policy have also been violated.
(3) The Insurance Company has raised the amount of premium on 23.5.83 and hence under Section 64(v)(b) of the Insurance Act, the contract of insurance was not in existence at the time of accident.
6. The Claims Tribunal after considering the evidence on record and after considering the fact that the payment was made by demand draft on the same day and that the accident was taken place on that date itself before 5.00 p.m., has come to the conclusion that when the owner took the insurance on 20.5.1983, he was unaware of the particulars of the accident. The Insurance Company was not in a position to establish that the owner has suppressed the fact regarding accident and hence the Insurance Company cannot escape from its liability.
7. With regard to the alleged breach of Section 64(v)(b) of the Insurance Act, the Claims Tribunal has come to the conclusion that the agent of the Insurance Company had accepted the demand draft at Harij prior to the happening of the accident and that the cover note was issued by the said agent and on these facts the Claims Tribunal has not accepted the contention raised by the Insurance Company and that the Insurance Company was not liable as the Insurance Company has not accepted the amount of premium under Section 64(v)(b) of the Insurance Act at the time when the accident took place.
8. With regard to the contention of the Insurance Company that a breach was committed by the owner of the terms and conditions of the policy as well as the terms and conditions of the permit issued for public carrier vehicle, the Claims Tribunal has held that it is the liability of the Insurance Company to prove whether the permit was issued in respect of the said vehicle and that the permit with a specific condition to allow transportation of the passengers for consideration by the said vehicle was issued and since the Insurance Company has not established by leading necessary evidence the said contention of the Insurance Company cannot be accepted.
9. After considering the entire facts and evidence on record as well as after discussing the relevant case law on the subject at length the Claims Tribunal has come to the conclusion that the opponents No. 1, 2, and 3 were jointly and severally liable to pay the aforesaid amount of compensation to each of the applicant and the issue No.3 was accordingly answered by the Claims Tribunal.
10. Being aggrieved by the aforesaid award and judgment of the Claims Tribunal, the appellant being Insurance Company has filed the above group of appeals before this Court, inter alia, raising the grounds that inference drawn and conclusions arrived at by the Claims Tribunal with respect to deceased and injured persons as third party or labourer, was against the weight of evidence on record and raising further grounds about misinterpreting and misreading the provisions contained in Section 95(1), 95(2) and 96(2) of the Motor Vehicles Act, 1939, and about the Claims Tribunal’s failure to see the extent of Insurance Company’s liability as prescribed under Section 95(2)(a) and about the Claims Tribunal’s further failure to consider the provisions contained in Rule 118 of the Motor Vehicle Rules, 1959, and about the Claims Tribunal’s further failure to take into consideration the terms and conditions of the policy as well as the permit and about the passengers in the truck were neither labourers nor third parties.
11. Mr. P.V. Nanavati, learned counsel has appeared for the appellant and Mr. Mohanbhai Desai, learned counsel has appeared for the respondent No.1. The respondents No. 2 and 3 were driver and owner of the truck and no one was present on their behalf. Though several grounds were raised in the memo of appeal, Mr. Nanavati has mainly addressed us on the point that in view of the judgment delivered by the Apex Court in the case of Smt.Mallawwa Vs. Oriental Insurance Co.Ltd. & Ors., reported in AIR 1999 S.C. 589, all the appeals filed by the appellant are required to be allowed and the award made by the Claims Tribunal in the claim petitions are required to be quashed and set aside. It is held in that case that the Insurance Company is not liable in case of death of owner of goods carried in a goods vehicle. For the purpose of Section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers have carried if the vehicle was of that class. Keeping in mind the classification of vehicles, by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use on some stray occasions of that vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to Section 95(1)(b), the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. Keeping the ratio of the judgment in mind, Mr. Nanavati has submitted that the vehicle in question was a “goods vehicle” as defined in Section 2(8) of the Motor Vehicles Act, 1939. According to the definition of “transport vehicle” in Section 2(33) of the Act, the ‘goods vehicle’ stands included. Under Rule 118 of the Rules framed under the Act, no person could be carried in the goods vehicle, except the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform travelling on duty subject to a maximum of 7 persons. Under Clause (2) of Rule 118 notwithstanding the above, a Regional Transport Authority may by an order in writing permit that a large number of persons may be carried in the vehicle on condition that no goods at all are carried in addition to such persons and such persons are carried free of charge in connection with the work for which the vehicle was used. While granting the written permission, the Regional Transport Authority may impose such other conditions as he may deem fit and where the vehicle is required to be covered by a permit, the conditions of the permission shall also be made conditions of the permit. Under Clause (3) of Rule 118, notwithstanding anything contained in the earlier clauses, a goods vehicle can be used for the purpose of celebrations in connection with the Republic Day or Independence Day, if the Regional Transport Authority permits by general or special order such use for the carriage of the persons subject to such conditions as may be specified in the order. On the date of the incident, there was no question of the vehicle being used for celebrations in connection with the Republic Day or Independence Day. From sub-rules (1) and (2) of Rule 118, it becomes obvious that the goods vehicle can never be used for carriage of passengers on hire. Under the contract of insurance, the policy did not cover use of the vehicle for the conveyance of passengers for hire or reward. Therefore, under Rule 118(1) of the Rules, a maximum of seven persons could be carried free of charge in a goods vehicle.
12. Mr. Nanavati, the learned counsel appearing for the appellant has further relied on the decision of this Court in the case of Heirs of Deceased Diwaliben Bhalabhai Pardhi & Ors. Vs. United India Insurance Co. & Ors, reported in 37(1) GLR Page 314, wherein the Court has held that the Insurance Company is not liable to make the payment of the amount awarded against the insured and the driver. In Para 10 of its Judgment, this Court has held as under:
“On a bare reading of the terms of the Insurance Policy it is clear that the liability in respect of the said motor vehicle which was a goods vehicle was covered under the Policy only when it was used under a Public Carrier’s Permit within the meaning of Motor Vehicles Act, 1939. Therefore, the liability arising by a use otherwise than under a Public Carrier’s Permit was not covered under the terms of the Policy. There was also a specific condition to the effect that the Policy did not cover use for carrying passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of the Workmen’s Compensation Act, 1923 as per clause (3) under the heading “Limitations as to use”. There was, therefore, a specific condition in the Policy excluding use of the vehicle for carrying passengers which expression would also including carrying passengers for hire or reward. As noted above, there was a clear stipulation under the heading “General Exceptions” that the Insurance Company shall not be liable under this Policy in respect of any liability arising while the motor vehicle is used otherwise than in accordance with the limitations as to use. It is, therefore, clear that there was no insurance cover given to the said vehicle for any use other than the use under a Public Carrier’s Permit and there was a specific condition excluding use of the vehicle for carrying passengers. A person issuing Policy of Insurance would be liable to indemnify the insured in respect of any liability which the Policy purports to cover in the case of that person as provided by Sec. 95(5), which means that the Insurer cannot be held liable to indemnify the insured in respect of any liability which is not at all covered by the Policy. Even apart from this, in view of the specific condition excluding use of the vehicle for carrying passengers for hire or reward, a defence was available to the Insurer under Sec. 96(2)(b)(i)(a) of the said Act. The vehicle on the date of insurance was not covered by any permit. Therefore, it was not covered by a permit to ply for hire or reward. It was required to be covered by a permit because it was a transport vehicle being a goods vehicle to which the provisions of Sec. 42 of the Act applied necessitating it to get a permit for use of such vehicle. In that provision when there is no permit granted for use of a transport vehicle it cannot be used in any public place whether or not it is actually carrying any passenger or goods. (Para 10).”
Reliance was also placed on the decision of this Court in the case of Sanjuben Bhikhabhai Vs. Koli Lalji Naku & Others, reported in 41(1) GLR 742, wherein it is held that when it is clearly established on record that the truck was meant only for carrying goods, it had no system of carrying the passengers for hire or reward. Even otherwise the touchstone would be as to whether it was permissible for the vehicle in question to carry the passengers and therefore whether they are carried on hire, reward or even if by way of gratis as gracious passenger would not make any difference. In such cases, there is no question of insurance cover to the passengers. The insurance cover is in respect of the vehicle or the goods contained therein, but the insurance cover cannot be extended to the passengers who board a goods carrier or are allowed to board the goods carrier for hire or reward or even on gratis. The insurance cover in such cases can be made available to the employees who are required for the purpose of taking such vehicle. Neither the driver nor the employees who are in fact carrying the vehicle are authorised to allow any passenger from right side to board such vehicle and then thereafter in case of accident, held the Insurance Company liable for the payment. If the driver or any of the employees of the owner of the vehicle do so and allow any passenger to board such vehicle, travel thereon, they do so at their own risk and the Insurance Company cannot be held liable for payment of any compensation to such passengers who are unauthorised and right from the inception when they start travelling in such vehicle, the focus is as to what is the class for which the vehicle is registered. If the vehicle is registered only for carrying goods and not for carrying passengers and yet the passengers are allowed to travel in such vehicles, they cannot seek protection of the umbrella of the insurance so as to get the compensation.
13. Mr. Mohanbhai Desai, the learned advocate appearing for the respondent No.1, has taken us to the object of the Motor Vehicles Act. He has submitted that the object is to award adequate compensation to the claimant. He has further submitted that the provisions of the Act are to be interpreted in a sympathetic manner so as to help the poor, illiterate and downtrodden people of the society and for this purpose he has relied on the decision of the Full Bench of this Court in the case of New India Assurance Co.Ltd., Vs. Kamlaben and Others, reported in 1993 ACJ 673, wherein this Court has held that the Claims Tribunal should take adequate precautions to protect the interest of poor victims of accidents or their dependents. The duty of the Claims Tribunal is to ensure that the major part of the compensation amount reaches the victims or their dependents, large part of the compensation amount is not frittered away, victims or their dependents are not again left at the mercy of the society; and the amount, which is paid by the nationalised insurance companies, serves its purpose and the socio-economic object of the legislation is not defeated.
14. Mr. Mohanbhai Desai, the learned advocate appearing for respondent No.1 has further submitted that the appellant Insurance Company cannot disclaim its liability as for the purpose of such disclaimer, the appellant Insurance Company has to establish that the insurance policy prohibits to carry passengers in the goods carrier and that the permit issued by the RTO contains such restriction. He has further submitted that inspite of examining as a witness an official from the RTO, the Insurance Company has contented with getting produced only an extract of Permit Register. But the permit itself has not been produced. In a Full Bench decision of this Court, in the case of Kamlaben and Others, sited Supra, it has been held that when the company raises a dispute pertaining to a permit issued by the R.T.O., the burden is on the company to discharge the same and it can be shown by producing the permit itself or a copy thereof. Since this has not been done in the present case, the appellant Insurance Company could not disclaim its liability under the policy. He has also stated that the policy did not contain any of such restrictions and hence the respondents-claimants are entitled to claim compensation for the death of the deceased persons and/or injury caused to them. For this proposition, Mr.Desai has relied on the decision of this Court in the case of United India Insurance Co.Ltd., vs. Ramanbhai Kachrabhai Raval &Ors,reported in 1996 ACJ 524.
15. Mr. Desai has also placed reliance on the decision of New India Assurance Co.Ltd., Vs. Lachhmi Devi and Others, reported in 1996 ACJ 496, wherein it is stated that the truck had been hired by members of a marriage party and dowry articles. The said truck met with an accident and several persons sustained injuries and some of them succumbed to the injuries. The Insurance Company contended that the deceased/injured were gratuitous passengers and hence it is not liable to pay compensation. However, no evidence was produced by the Insurance Company to prove that victims were gratuitous passengers. On these facts, the Court has taken the view that if a breach of a term of contract permits a party to the contract not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led. The claimant or the insured is under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance. It is the insurance company which must lead evidence to substantiate its allegation that there has been a breach of the terms of the contract of insurance. The only statutory defence purported to be pleaded herein was that the deceased was a gratuitous passenger. The deceased/injured were gratuitous passengers and no evidence has, however, been led in support of the case.
16. Mr. Mohanbhai Desai, ld. advocate for the respondent No.1 has further submitted that the amount awarded in the case of claimants in First Appeal No. 2563 of 1997 and No. 2567 of 1997 being small, the appeals filed against the award may be dismissed. He has further submitted that many appeals filed by the Insurance Companies involving the challenge against the small amount awarded by the Tribunal were dismissed by this Court and on that ground these two appeals may also be dismissed by this Court.
17. Mr. Desai has also submitted that the applicants in Application No. 207, 208, 209 and 210 of 1983 and 66 of 1984 were travelling as labourers and the applicants in Application No. 322, 323, 333 and 334 of 1983 were sitting near a heap of Kapachi which was lying near the place of accident and they have sustained injuries on account of the said accident. Mr. Desai has further submitted that the trial Court has given this categorical finding which is a finding of fact and cannot be disturbed by this Court without any cogent, clear and unequivocal evidence and in this view of the matter, the compensation awarded to them should not be disturbed by this Court.
18. Mr. Mohanbhai Desai has further submitted that from the language of Section 140 of the Motor Vehicles Act, it is clear that either claimants may move an application for interim compensation or where the application for interim compensation is not moved, the Tribunal may consider the matter for granting interim compensation suo motu. As by the very nature of this name given to it and coupled with the fact that it is a benevolent provision of the Act, it has to be decided immediately and without waiting for the full-fledged trial of the claim application. The benefit falls under the category of ‘no fault liability’ and to award this compensation, the Tribunal is not required to even hold summary adjudication. Mr. Desai has, therefore, submitted that even on the basis of this ‘no fault liability’, the claimants are entitled to the interim compensation as per the provisions contained in the Act. In support of this proposition, Mr. Desai has relied on the decision of this Court in the case of New India Assurance Co. Ltd. vs. Sanjay Vajubbai Pari and Others, reported in 1999 ACJ 1247, the decision of the Madhya Pradesh High Court in the case of National Insurance Co.Ltd. Vs. Shabirkhan and Others, reported in 1992 ACJ 873, and also the decision of this Court in the case of Munshiram D. Anand Vs. Pravinsinh Prabhatsinh, reported in 1997 ACJ 206.
19. Mr. Mohanbhai Desai, the ld. advocate for the respondent-claimant has further submitted that when a valid insurance policy has been issued in respect of a vehicle as evidenced by the certificate of insurance the burden is on the insurer to pay to third parties, whether or not there has been any breach or violation of the policy conditions but the amounts so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured. For this proposition, Mr. Desai has relied on the decision of the Hon’ble Supreme Court in the case of New India Assurance Co., Shimla vs. Kamla and Others, reported in AIR 2001 S.C. 1419, wherein it is held that the insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition but the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence. In the said case, the Hon’ble Supreme Court has directed the Tribunal that if the Insurance Company succeeds in establishing that there was a breach of the policy condition, the Claims Tribunal shall direct the insured to pay the amount to the insurer and in default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimants-third parties) from the insured person. For this purpose, the matter was remanded to the Claims Tribunal. However, it was made clear by the Hon’ble Supreme Court that the claimants shall not be bothered during the remaining part of the proceedings. In other words, if there is any breach of condition of the policy, the dispute is between the insurer and the insured. The rights of the third parties are not affected because of the said dispute as the insistence of the Legislature that a motor vehicle can be used in a public place only if that vehicle is covered by a policy of insurance is not for the purpose of promoting the business of the Insurance Company but to protect the members of the community who become sufferers on account of accidents arising from use of motor vehicles. Such protection would have remained only a paper protection if the compensation awarded by the courts were not recoverable by the victims (or dependents of the victims) of the accident. This is the raison d’etre for the legislature making it prohibitory for motor vehicles being used in public places without covering third party risks by a policy of insurance.
20. In Rejoinder to the submissions made by Mr. Desai, the ld. advocate appearing for the respondent-claimants, Mr. Nanavati, the ld. advocate appearing for the Insurance Company has submitted that none of the arguments canvassed by Mr. Desai on behalf of the respondents is now tenable, in view of the decision taken by the Hon’ble Supreme Court in the case of Smt. Mallawwa Vs. Oriental Insurance Co. Ltd., (Supra), which is further referred to and relied upon in the case of Ramesh Kumar Vs. National Insurance Co. Ltd., and Others, reported in 2001 ACJ 1565, and in the case of New India Assurance Co.Ltd., V. Asha Rani and Others, reported in 2001 ACJ 1847. Mr. Nanavati has further submitted that the respondent cannot derive any support from the decision of the Hon’ble Supreme Court in the case of New India Assurance Co.Ltd Vs. Kamla & Others (Supra), in view of the recent Larger Bench Judgment of the Hon’ble Supreme Court in the case of New India Assurance Co.Ltd., Vs. C.M. Jaya & Ors., reported in A.I.R. 2002 S.C. 651, wherein it is held that a careful reading of these decisions clearly show that the liability of the insurer is limited as indicated under Section 95 of the Act, but it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also.
21. Mr. Nanavati has further submitted that the Tribunal’s finding that some of the persons travelled in the vehicle were labourers and some of them were sitting on heap of Kapachis lying at the place of accident was not correct in view of the depositions recorded by the Tribunal, wherein it was stated that they were travelling in the vehicle by paying fare and neither of them were labourers or were sitting at Kapachis lying near the accident. In view of these statements, the finding arrived at by the Tribunal is not correct and hence it deserves to be reversed.
22. We have heard both the learned advocates appearing for their respective parties and have also gone through the records and proceedings of all these matters. We have also given our anxious thoughts to the authorities sited before us and after careful examination of the pleadings of the parties and arguments of their learned advocates, we are of the view that in view of the judgment of the Hon’ble Supreme Court in Mallawwa’s case (Supra), the Insurance Company is held to be exonerated from its liabilities towards gratuitous passengers. The finding with regard to payment of compensation awarded by the Claims Tribunal, is however, not required to be disturbed except in F.A. No. 2566/97, for the reasons which we have recorded hereafter.
23. In New India Assurance Co.Ltd., Vs. Asha Rani and Others, reported in 2001 ACJ 1847 (S.C.), the Hon’ble Supreme Court, while holding that Satpal Singh’s case reported in 2000 ACJ 1 (S.C.) requires reconsideration of a Larger Bench and placing the said matter before the Hon’ble Chief Justice for constituting a Larger Bench, has pointed out certain distinguishing features between the Motor Vehicles Act, 1939 and Motor Vehicles Act, 1988. The first striking distinguishing feature pointed out was with reference to the definition of the “goods vehicle” as defined under the Act of 1939 and the “goods carriage” as defined under the Act of 1988. The significant difference between the two definitions is that under the Act of 1939, the definition includes “or in addition to passenger”, while these words are deleted while defining the “goods carriage” under the Act of 1988. Thus, under the Act of 1939, the “goods vehicle” could be used for the carriage of goods “or in addition to passengers” while under the Act of 1988, goods carriage cannot carry any passenger. Thus, under the Act of 1988, if in a case a permit issued for a “goods carriage” it would not include any passengers and in case they travel, it would be contrary to the mandate of the statute and thus in view of Section 149(2) of the Act of 1988, no liability would be passed on to the Insurance Company. It is, thus, clear that if the passengers were allowed to travel in the goods vehicle in violation of the terms of insurance policy, then in that case, under the old Act, it may be argued that it would simply amount to breach of terms of the policy and it would not be contrary to the mandate of the statute and hence the ratio laid down in Kamla’s case (Supra) would possibly govern such cases and Insurance Company may, in a given case, be directed to recover the amount from the owner of the vehicle who has committed the breach of the terms of the policy, and not from the claimants who are sufferers and victims of the accident. We are, however, not inclined to take such view as the Mallawwa’s case (Supra) is decided under the Old Act of 1939 and there is no such finding therein that even if Insurance Company is not held to be liable for compensation, the Insurance Company should pay to the claimant and recover the amount of compensation from the insured.
24. In the case of Ramesh Kumar Vs. National Insurance Co.Ltd. & Others, reported in 2001 ACJ 1565, the Hon’ble Supreme Court has classified all such cases in three categories. The first category of cases arise out of the Motor Vehicles act, 1939. The cases arise under this category need not require any elaborate discussion now as this question has been directly raised and decided in Mallawwa’s case, cited Supra. As stated earlier, the Hon’ble Supreme Court held that the Insurance Company is not liable for any damage in cases of the gratuitous passengers including owner of the goods or his representative who travelled in a goods vehicle. The liability to pay compensation to the claimants of such person is not on the Insurance Company but on the owner of the goods vehicle. In case Insurance Company had made part or full payment towards such compensation awarded, the same shall not be refunded from the claimant but is recoverable by the Insurance Company from the owners. In case the amount has been withdrawn by the claimants on furnishing any security, the said security shall stand discharged. In case no payment or part payment has been made to the claimant, the owners of the vehicle are directed to pay the awarded amount/compensation to the claimant. It is true that the Claims Tribunal had awarded the compensation to the claimants. Appeals against such award were admitted only on condition to deposit the awarded amount. Part of the amount was given to the claimants and balance amount was invested in the names of the claimants. The orders regarding investment and disbursement of compensation were passed as a precautionary measure so as to protect the interest of poor victims of accidents or their dependents. The duty of the Court in such cases is to ensure that major part of compensation amount reaches the victims or their dependents and is not frittered away so that they are not again left at the mercy of the society and the socio-economic object of the legislation is not defeated. But, simply on this ground it cannot be said that the amount invested in the name of the claimants would tentamount to the amount paid by the Insurance Company to the claimants and even Ramesh Kumar’s case (Supra) has not gone to the extent of saying that such amount shall not be refunded from the claimant but is recoverable by the Insurance Company from the owners. Ramesh Kumar’s case (Supra) would not help those claimants in whose favour the Claims Tribunal has passed the award and amount of compensation is invested in Fixed Deposit. On Claims Tribunal’s award and judgment being reversed in appeal, the amount invested in Fixed Deposits is required to be refunded to the Insurance Company and the claimants are at liberty to recover the amount of compensation from the insured.
25. With regard to the Insurance Company’s argument about limited liability, we are of the view that after the Larger Bench’s judgment in C.M. Jaya & Others, this issue has no longer remained res integra now. However, it is held by the Hon’ble Supreme Court that it is open to the insured to make payment of additional higher premium and higher risk covered in respect of third party also. Here in the present case, the Claims Tribunal in Para 45 of its award and judgment has held that it transpires from the Insurance Policy produced at Exh. 72 that the Insurance Company had accepted the additional premium as per I.M.T.16 of the Conditions of Policy and risk in respect of the driver, cleaner and six labourers of the said truck is covered. The Claims Tribunal has also held earlier in Para 43 of its award and judgment that out of the applicants, the deceased person in case of petition No. 315/83 was the cleaner, the applicants of petitions Nos. 207/83, 208/83, 209/83, 210/83 and 66/84 were the labourers and applicants of petitions Nos. 322/83, 323/83, 333/83 and 334/83 were sitting on the heap of Kapachis and the rest were the members of the marriage parties. Out of 63 persons, only eleven claim petitions were filed. The deceased person in case of Petition No. 315/83 was the cleaner, and Claims Tribunal had awarded compensation of Rs. 3,20,000/= and yet no appeal was filed by the Insurance Company. In respect of Claim Petitions Nos. 209/83 and 210/83, the persons travelled in the truck were labourers and have expired and compensation of Rs. 1,35,000/= and Rs. 1,25,000/= respectively were awarded. Similarly, claimants of Claim Petitions Nos. 207/83, 208/83 and 66/84 were also labourers and compensation of Rs. 32,000/=, Rs. 21,000/= and Rs. 42,100/= respectively were awarded. The claimants in Claim Petitions No. 322/83, 323/83, 333/83 and 334/83 were sitting on the heap of Kapachis and compensation of Rs. 20,000/=, Rs. 33,000/=, Rs. 30,000/= and Rs. 30,000/= respectively were awarded. The only person then remained was Shri Balabhai Ramjibhai who was travelling as a passenger in the said truck and has expired as a result of that accident and in the Claim Petition No. 250/83 filed by his widow, the Claims Tribunal had awarded the compensation of Rs. 1,00,000/=. Thus, out of the present group of 10 appeals, all other 9 appeals, barring Appeal No. 2566/97 and Claim Petition No. 250/83 from which the said appeal arose, are not covered by the Mallawwa’s judgment as the deceased and/or injured persons therein were neither gratuitous nor fare paying passengers and hence Insurance Company cannot be exonerated from its liabilities qua the claims of these claimants are concerned. As far as the Claim Petition No. 250/83 is concerned, the Claim Tribunal had awarded the compensation of Rs. 1,00,000/=. Appeal No. 2566/97 filed by the Insurance Company is now required to be allowed in view of the decision taken in Mallawwa’s case (Supra) and amount deposited by the Insurance Company and invested in Fixed Deposits is required to be refunded to the Insurance Company and the claimants in this First Appeal can recover the amount of compensation towards satisfaction of the award from the insured.
26. As a result of the foregoing discussion, all the First appeals, barring First Appeal No. 2565 of 1997, are dismissed. The common Judgment and Award dated 22.4.1997, rendered by the Motor Accident Claims Tribunal (Main), Palanpur, except in M.A.C. Petition No. 250/83 is confirmed as indicated above and the appellant Insurance Company in First Appeal No. 2566/97 is exonerated from the liability to pay compensation to the original-claimants of the Claim Petition No. 250/83 from which the First Appeal No. 2565/97 arose and since the amount of compensation has already been deposited by the Insurance Company, the impugned award and judgment, qua the Claim Petition No. 250/83 is modified to the extent that the appellant Insurance Company is entitled to recover the amount of compensation invested in the fixed deposits and that the original-claimants of the Claim Petition No. 250/83, are entitled to recover the amount of compensation towards satisfaction of award from the original-opponents Nos. 1 and 2 of the said Claim Petition. The rest of the award in respect of all other nine claim petitions is not disturbed and is hereby confirmed to the extent indicated above. The order of disbursement and investment passed by the Claims Tribunal in all the nine Claim Petitions in favour of the claimants, barring Claim Petition No. 250/83, is hereby not disturbed and confirmed. The impugned award be modified in terms of this judgment. There shall be no order as to costs.