JUDGMENT
C.K. Thakker, J.
1. The present appeal has been filed by the insurance company (original opponent No. 3) challenging the judgment and award passed by the Motor Accidents Claims Tribunal (Main), Surendranagar, dated 11th October, 1982, in Motor Accident Claim Petition No. 224 of 1981.
2. The first respondent herein is the original claimant, respondent No. 2 is the owner of the vehicle in question and the respondent No. 3 is the person who was actually driving the vehicle in question at the time of the accident.
3. The facts leading to the claim petition, which are not disputed or which constitute a common ground as between the claimant and the owner of the vehicle in question, can be stated, in brief, as under:
3.1. The vehicle in question is a tanker bearing registration No. GTX 5332 owned by the second respondent firm. At the relevant point of time it was being driven by the present respondent No. 3 who was regularly employed as the driver of the vehicle. The claimant was travelling in the cabin of the vehicle at the relevant point of time. The vehicle is a ‘goods vehicle’ within the meaning of the Motor Vehicles Act, 1939. This tanker left from Rajkot to Sabarmati on 3rd August, 1980, to collect a consignment of kerosene. A full load of 10 metric tons of kerosene was taken aboard from Sabarmati and the vehicle was, on the next day, viz., 4th August, 1980, returning from Sabarmati to Rajkot. When it left Sabarmati, it was driven by the claimant. Somewhere near Chotila, the claimant handed over the charge of the vehicle to the second respondent who was the driver in the regular employment of the owner. Thus, the third respondent was driving the vehicle as an employee of the owner from about Chotila and driving towards Rajkot which was the headquarters of the owner firm. Shortly after Chotila, when the vehicle was near Bamanbor which is approximately 30-35 km. from Rajkot, the third respondent was driving the vehicle in a rash and negligent manner which resulted in the tanker turning turtle. This occurred some time between 5 and 6 p.m. on 4th August, 1980. The claimant suffered severe injuries on account of this accident. The details of his injuries and the expenses incurred by the claimant, etc., are not presently relevant. Ultimately the claimant filed the claim petition.
4. After appreciating the evidence on record and hearing the parties on their various submissions, the Tribunal passed an award in favour of the claimant in the sum of Rs. 75,100/- with interest at the rate of 6 per cent per annum and held that the opponents are jointly and severally liable to meet the award. The present appellant insurance company challenges the latter part of the award, viz., its liability to meet the award.
5. Before dealing with the contentions of various parties it would be relevant to note precisely what case is pleaded and sought to be made out by each of the parties. The case of the claimant, as made out in the claim petition, as also in his deposition is to the effect that he is a qualified driver and holds a valid driving licence, that he was regularly employed by the owner of the tanker as a reliever-driver, that he was on duty as a reliever-driver along with the respondent No. 3, that he suffered injuries on account of rash and negligent driving of the said respondent No. 3 and thus the owner of the tanker, the actual driver of the tanker and the insurer are all jointly and severally liable to satisfy the award which may be passed in his favour.
5.1. The owner of the tanker in its written statement, Exh. 43, firstly, contended that the claimant was not its regular employee, but was merely engaged as a reliever-driver on a daily wager basis. The owner firm also contested the claimant’s case that he was employed on a regular basis on wages amounting to Rs. 450/- per month. The owner admitted that the claimant had sustained injuries and further admitted that the accident had occurred on account of rash and negligent driving of the actual driver, viz., respondent No. 3. It may be pointed out here that this admission on the part of the owner as regards the rash and negligent driving of the actual driver is not an admission specifically made in the written statement itself, but is definitely a specific admission made in his deposition in the capacity of the partner of the owner firm. This assertion is also made in the F.I.R. lodged by him.
5.2. The written statement of the actual driver, respondent No. 3 herein, at Exh. 33, sets up a case which is partly in support of the owner and partly in support of the claimant. The actual driver Hemubhai in his written statement, firstly, denies that the claimant was engaged as a regular driver on a monthly salary of Rs. 450/~ plus Rs. 15/-per day by way of bhatta, but the claimant was engaged by the owner firm as a reliever-driver at his own instance, and that the claimant was travelling in the tanker which he was driving. He admits that the claimant suffered many injuries, and he also admits that he was driving the vehicle at the time of the accident, but denies that the accident was due to rash and negligent driving on his part.
5.3. Exh. 28 is the written statement filed by the insurer, the present appellant. It must be noted that the case pleaded by the insurer, in its vital aspect, is both categorical and unequivocal. Amongst other contentions, it was specifically contended that the claimant was not travelling in the vehicle as a driver employed by the owner, that he was travelling illegally as a passenger in a ‘goods vehicle’ and that, therefore, the insurer was not liable. By an amendment in the said written statement (which was granted), a further contention was added to the effect that on the date of the accident the vehicle insured by the insurer was not covered by any permit to carry any passenger (for hire or reward or otherwise), and that there was a specific condition in the policy which excluded the use of the vehicle for carrying passengers for hire or reward and that in any case, since the vehicle was in fact used in breach of the conditions specified in the permit on the occasion giving rise to the claim, the use of the vehicle at the relevant point of time was in violation of statute, and thus the insurer would not be liable to meet any award that may be passed in favour of the claimant. It also appears from the written statement of the insurer that it pleaded collusion between the claimant and the owner of the vehicle in question.
6. There are certain other factual aspects, which we may refer to, which are not seriously in dispute. The partner of the firm, Jayant Rasiklal, Exh. 70, on learning of the accident, reached the site of the accident from Rajkot, but thereafter went back to Rajkot some time during the night of 4th August, 1980. It was on the next day, i.e., 5th August, 1980, that this partner filed an F.I.R. at the police station of Chotila to the effect that the vehicle in question had met with an accident, that the accident was on account of rash and negligent driving on the part of the driver Hemubhai, respondent No. 3 and that, therefore, appropriate action may be taken. We mention this fact only because it leads to another aspect which is required to be considered. The accident occurred on the evening of 4th August, between 5 and 6 p.m., whereas the F.I.R. was lodged on the next day, viz., 5th August, 1980, at the Chotila Police Station by the said partner. This partner had by necessary implication spent the night between 4th and 5th August, 1980, at Rajkot and also perhaps the early part of 5th August, 1980. It also appears from his deposition that some police inquiry was made by the Rajkot police where he had given a statement. Although this statement is not on record, there is an implied admission on the part of this partner that his statement was in fact recorded by the Rajkot police. We shall advert to this aspect later on while discussing the deposition of this partner, Jayant Rasiklal.
7. Learned counsel for the insurer, firstly, contended that the oral and documentary evidence on record must be appreciated in the light of the pleadings of the respective parties and particularly the pleading of the insurer that there is collusion between the claimant and the owner of the vehicle. There can be no controversy as regards the basic principle behind this submission.
7.1. Learned counsel for the insurer has seriously contended that its own case is that the claimant was travelling as an illegal passenger at the time of the accident and that he was not employed by the owner as a reliever-driver as claimed by the claimant. In any view of the matter the case of the insurer is that the claimant was not an employee of the owner firm at all; whereas the case of the actual driver was that although the claimant was not a regular employee, he was engaged as a reliever-driver on a daily wager basis, and this is also the case of the owner. It is in the context of these contentions that we must examine the evidence on record.
7.2. At this stage before we proceed to the appreciation of evidence on record, it will be pertinent to note the well settled principle of law pertaining to such appreciation. In Gopalkrishnaji Ketkar’s case AIR 1968 SC 1413, the Supreme Court has laid down that the party which is in possession of the best evidence is under an obligation to produce the same, irrespective of where the onus of proof may lie. If such a party withholds the same, an adverse inference is required to be drawn. The same principle has been reiterated in Ramdas Oil Mills’ case AIR 1977 SC 638, in the context of non-production of account books. Thus, we shall now appreciate the evidence on record in the context of the said observations.
8. The claimant has deposed at Exh. 59. In his examination-in-chief he asserts that he was an employee of the owner and that he was drawing a monthly salary of Rs. 450/-plus an allowance of Rs. 15/- per day when actually on duty. He asserts that in the return trip from Sabarmati to Rajkot on 4th August, 1980, when the vehicle was near Bamanbor, respondent No. 3 was actually driving the vehicle and on account of his rash and negligent driving the tanker met with an accident. He suffered serious injuries and became unconscious. He was later on taken to Rajkot Hospital.
8.1. In the context of his assertions in the examination-in-chief, the contradictions and admissions brought out in the cross-examination are extremely significant. In the course of his cross-examination, firstly, he admits that he has no documentary evidence to show that he was employed as a driver by the owner of the firm. He further admits that he does not know whether the owner of the truck is a proprietary concern or a partnership concern, nor the number of partners in case it is the latter. He does not know the number of staff employed by the owner. He does not know who manages the affairs of the owner. He also admits that when he was employed no signature was obtained. In respect of the latter statement his clarification is that he was engaged only on the 1st August, 1980; whereas the said accident occurred on 4th August, 1980 and, therefore, he has not been paid in respect of these four days. He admits that the trip which commenced on 3rd August, 1980, from Rajkot to Sabarmati and the reverse trip on 4th August, 1980, from Sabarmati to Rajkot was his first trip after being employed. He describes the vehicle as a truck-trailer. When he says that the vehicle is a truck-trailer, what he means is that, firstly, it was a goods vehicle within the meaning of the Act, and that it was a tanker consisting of two parts, the front part being the engine and the cabin of the driver, and the rear part consisting of the tanker body in the form of a trailer attached to the engine and the body, connected by what is commonly known as an articulated link. He further concedes that although he had taken the truck from Rajkot to Sabarmati and into the Sabarmati depot of the Indian Oil Corporation for the purpose of filling the tanker with kerosene and although he was in charge of the vehicle at that point of time, his signature has not been taken on any document by the Indian Oil Corporation. He explained that the necessary documents were signed by the cleaner. However, he does not explain why he had not signed such documents in spite of the fact that he was the actual driver at the relevant point of time. His only explanation is that the documents were signed by the cleaner, because the cleaner happened to be a passenger. Ultimately he also admits that in none of the documents pertaining to the loading of the tanker at the Indian Oil Corporation depot, has his name been recorded as the driver of the vehicle. He is also obliged to admit that in his former employment with other employers, when he used to take tankers to Indian Oil Corporation depot as a driver, he used to sign the necessary documents as a driver of such tanker. He then admits that he is not aware whether the owner firm maintains any accounts, records, bill books or voucher books. He is not aware whether such books, if available, contain any reference about him as an employee. He also concedes that he does not maintain any record in respect of either his employment as a driver, or any record in respect of the trip in question. He further admits that he has not reported for duty after the accident, that the owner has not paid him any amount for the four days of his alleged employment and that he has not made any demand in respect of the wages due to him or taken any other step to recover the same. Thus, the deposition of the claimant on the relevant aspect of his alleged employment, as seen from his examination-in-chief and the cross-examination thereon, would indicate that his claim to be a regular employee, or his case that he was employed as a reliever-driver, is based on his mere oral assertion without any other corroborative evidence, let alone documentary evidence.
8.2. Relevant on the point of employment would also be the deposition of Jayant Rasiklal, who is the partner of the owner firm at Exh. 71. At the outset, we may reiterate that the case sought to be made out by the claimant in the claim petition and the case pleaded by the owner are partly in support of each of them, but highly divergent on certain relevant material aspects, viz., the terms and conditions of the employment. Once we note this distinction, we must examine the evidence of the partner of the owner firm from that perspective, also bearing in mind the case of the insurer that the claimant and the owner have acted in collusion.
8.3. The evidence of Jayant Rasiklal at Exh. 71, so far his examination-in-chief is concerned, indicates that the claimant was a driver not employed as a regular employee but was engaged on a daily wager basis, and his only remuneration was a daily allowance of Rs. 10/-. The partner of the owner firm seeks to justify the presence of the claimant in the truck by asserting that the regular driver Hemubhai was tired and, therefore, he needed a reliever. This explanation, even if true, would explain the presence of the claimant on the vehicle at the time of the accident, but would have no bearing whatsoever on the aspect of whether he was employed or not, 01 as regards the terms of employment. The assertion of the partner to the effect that the claimant was engaged as a daily wager driver for a daily remuneration of Rs. 10/- is, to say the least, ridiculous and unacceptable. Any person who is duly qualified to drive a heavy motor vehicle and/or goods vehicle, even if engaged on daily wages, would not agree to accept such employment for a mere Rs. 10/- per day. Jayant Rasiklal denies even in his examination-in-chief the case of the claimant that he was engaged as a regular driver on monthly remuneration of Rs. 500/- plus allowances. He asserts, however, that Hemubhai, the respondent No. 3, was driving the tanker in a rash and negligent manner.
8.4. The cross-examination of this witness is equally relevant. Firstly, he asserts that the owner of the tanker in question is partnership firm, but he has no documentary evidence to establish his assertion. He asserts that the firm maintains books of accounts and records, but he did not produce the same. It is pertinent to note here that even thereafter until the judgment was delivered, no attempt has been made whatsoever to produce any relevant documentary evidence, either on this aspect or any other aspect of the controversy. This witness emphatically denies that the claimant was employed as a regular driver on monthly wages of Rs. 500. His assertion is limited only to the effect that the claimant had gone with the regular driver for the trip in question. Proceeding further with his cross-examination, he admits that the firm has no documentary or even other corroborative evidence to establish that the claimant had been employed by them at all (irrespective of the nature of employment). He admits that the respondent No. 3, Hemubhai, who was the regular driver and who was actually driving the tanker in question, is the regular driver. This witness admits that the claimant was engaged only at about the time of accident and that the firm has not paid him anything because no demand has been made. He further admits that no payment has been made even prior to the accident. On the relevant date the firm had two vehicles and two regular drivers. After the accident, there remained with the firm only one vehicle and one driver. Thus, the witness is unable to explain why the other regular driver of the firm was not assigned to accompany Hemubhai instead of engaging a daily wager such as the claimant. This witness has, of course, denied that the accounts of the firm did not contain any entry as regards the employment of the claimant or any other daily wager driver. However, this is a mere denial, and in the absence on record of the account books and other statutory records required to be kept by the owner of such vehicles, not much reliance can be placed on such a denial. Furthermore, this witness admits that the firm has been registered under the provisions of the Bombay Shops and Establishments Act as a commercial establishment, and that the firm maintains an attendance register as required by the statute. However, admittedly the claimant’s name is not entered in the attendance register on any day whatsoever. During his cross-examination this witness attempts to justify the employment as daily wager and his assignment for the tanker trip question on the ground that the Rajkot-Sabarmati trip was a long trip. It is obvious that this trip consisted of two parts. The trip from Rajkot to Sabarmati admittedly is 4-6 hours as also the return trip. The tanker together with its driver stayed at Sabarmati during the night of 3rd August, 1980 and the return trip from Sabarmati to Rajkot on 4th August, 1980, was also 4-6 hours. It is further admitted by this witness that the trip of 4-6 hours from Rajkot is not considered a long route. This admission fails to support the theory behind engaging the claimant as a reliever-driver. Even if it is accepted as a hypothesis, that regular driver was tired and requested the company for the reliever-driver, then as already stated hereinabove, the trip from Rajkot was undertaken on the earlier day, i.e., 3rd August, 1980, they had a night halt at Sabarmati and the return trip from Sabarmati was undertaken on the next day. There is nothing to the contrary to this on record. Thus, even if it is assumed that the regular driver Hemubhai was tired, that by itself would not justify either a demand for a reliever-driver nor the assignment of such a reliever-driver to him by the owner, bearing in mind the admission that, firstly, this trip of 4-6 hours is not considered a long trip in the trucking industry and, secondly, that the regular driver would have a night halt at Sabarmati. This partner further admits that he had filed the F.I.R. at Chotila Police Station on the next day. Another significant aspect which is brought out from the cross-examination of this witness, which is an admission, is that before he filed the F.I.R. at Chotila (at about 3 p.m. on 5.8.1980, his statement had been recorded by the Rajkot police at Rajkot. His deposition is then silent as to why, how and under what circumstances such a statement was recorded by the Rajkot police or what happened to such a statement thereafter. On a combined reading of the oral evidence of these two witnesses, it becomes abundantly clear that they seek to support each other on every broad aspect, viz., that the claimant was employed by the owner firm. But there is a very serious allegation as regards collusion between the claimant and the owner and, therefore, glaring admissions brought out in the deposition of the owner, Jayant Rasiklal, become extremely important. We only emphasise some of his silent admissions. Admittedly, the books of accounts and other statutory records, though maintained, have not been produced in the court. Secondly, although the firm maintains statutory records including the attendance register under the Bombay Shops and Establishments Act, the name of the claimant is not entered in this register. There is no evidence whatsoever as regards payment made to the claimant on account of his employment, either on the date of the accident or even thereafter. In fact, the very theory put up by both, the claimant and the owner as to why the claimant was required to accompany the regular driver Hemubhai on a trip which, to their knowledge, was not a long trip and, also, to their knowledge, was a trip which would give them a night halt at Sabarmati, is not acceptable. In view of this state of evidence we have no hesitation in coming to the conclusion that the claimant and the owner have come together with a common case that the claimant had been employed as a reliever-driver, and the only objective of making of such a common plea is to fix the liability on the insurer. Had the claimant been regularly employed, his name would have been found in the account books and other statutory records required to be maintained not only under the Bombay Shops and Establishments Act, but also under the terms of the insurance policy read with endorsement I.M.T. 16 thereof. As aforesaid, on a total consideration of such evidence we hold that the claimant was not employed by the owner firm nor was he assigned to accompany the regular driver for duration of the trip in question.
9. At this juncture we must revert back to the pleadings of the parties and examine the effect of these findings on the respective cases. The case of the claimant is that he was employed as a reliever-driver; whereas the case of the owner is that he was employed as a daily wager driver. What is material is that both agreed that he was employed as a driver. What requires to be emphasised here is that it is nobody’s case that he was employed in any capacity other than that of a driver. Thus, once we come to a conclusion that he was not employed as a driver, we are not required to consider, in view of the specific pleadings of the parties, as to whether he was employed in any other capacity or not. Such a consideration is ruled out by the very nature of the pleadings of the parties and the evidence on record.
10. Since we have recorded a finding that the claimant was not employed as a driver and the consequential finding that he was not an employee of the owner firm in any other capacity, we are then required to consider the capacity in which he was travelling on the vehicle at the relevant point of time.
10.1. In view of the specific pleadings of the parties hereinabove, the fact that he was travelling in the vehicle is not denied; and in view of our finding, the claimant was not travelling as an employee. Thus, the only capacity in which his presence can be regarded is that he was travelling as a passenger. Furthermore, it is nobody’s case that he was a fare-paying passenger and, therefore, the only case we are required to consider is where he is found to have been travelling in a ‘goods vehicle’ as a gratuitous passenger.
10.2. In the premises aforesaid, the law applicable to the claim put forth by such a passenger is concerned, the law is amply clear. In the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. 1977 ACJ 343 (SC), the Supreme Court has amply clarified the legal position in this regard. In the said decision, after considering Section 95 of the Motor Vehicles Act and various sub-sections thereof, the Supreme Court has observed in para 22 of the said decision that the law does not require that a policy of insurance should cover the risk of passengers who are not carried for hire or reward. Consequently, the Supreme Court observed that since under Section 95 of the Act, the risk of a gratuitous passenger is not required to be covered, it could be safely held that the insurance company would not be liable under an award passed under the Motor Vehicles Act.
10.3. We note and observe that the said decision would apply to a policy which is statutorily required by Section 95, viz., ‘Act only’ policy. Whether the policy, on the facts of the case, covers such gratuitous passengers or not shall be considered hereinafter.
11. This takes us to consideration of the factual aspect of the policy. There is a serious controversy between the parties as to whether the document which purports to be a true copy of the policy in question (which is merely produced on the record of the case) and as to whether the same can be looked at as ‘evidence’. In this context we may first observe that there is no dispute between the owner and the insurer that there was a contract of insurance between them in respect of the vehicle in question. In fact, the written statement of the insurer refers to the policy number and the date of issuance. Thus, it is established at the very least that the insurer had in fact issued an insurance policy in favour of the owner of the tanker, and the tanker in question was the subject-matter of coverage.
11.1. On the facts of the case we note that during the course of the trial, the learned counsel for the insurer had presented an application, Exh. 47, which is an application on the part of the insurer for production of the document referred to in the list attached to that application. Simply speaking, it was an application for production. This application has been granted by the Tribunal by a specific order. Thus, since the production of document was permitted, the counsel for the insurer was permitted to produce Exh. 48 which in turn is a list purporting to produce one document, which is described as ‘a true copy of the policy’. This true copy of the policy being attached to the list, Exh. 48, has been marked as Mark 48/1. We note that, firstly, this true copy of the policy has remained unexhibited and still bears the Mark 48/1. This is probably because, firstly, no endorsement appears to have been made by the learned counsel for the original opponents on the list Exh. 48 whereby they admit and thereby permit exhibiting the Mark 48/1. Secondly, it does not appear from the record of the case that the Mark 48/1 was put to any competent witness and proved according to the rules of evidence. Thus, the Tribunal cannot be faulted for not having exhibited Mark 48/1. Thus, technically speaking, the true copy of the policy at Mark 48/1 is not ‘evidence’ on the record of the case:
11.2. In this context the learned counsel for the claimant emphatically asserts that since it is not ‘evidence’ on the record of the case, this court would not be justified in looking at the contents thereof nor would it be justified in drawing any conclusion from its contents. He, however, concedes that there is no material on the record of the case to contradict the common case of the owner and the insurer that in fact they have issued a policy in favour of the owner and covering the vehicle in question.
11.3. In such a situation, according to the learned counsel for the claimant, this court would be required to ignore Mark 48/1; but may be justified in assuming that there was a policy which meets the minimum requirements of law under Section 95 of the Act, i.e., there was an ‘Act only’ policy.
11.4. As against that, the learned counsel for the insurer submitted that the fact that Mark 48/1 has escaped being exhibited is, firstly, a mere technicality and secondly, is a mere formality which can be set right even today. He, therefore, submits that this court may permit the insurer to prove Mark 48/1 by examining the competent witness, or in the alternative, the court may remand the case back to the Tribunal for the limited purpose of proving Mark 48/1.
12. While considering these contradictory and conflicting submissions of the learned counsel for the parties, we feel that we ought to consider the consequences of both possible courses of action. On one hand, we may accept the record of the case as it stands and ignore Mark 48/1 as a piece of evidence. If we adopt this course, we would be required to proceed on the basis that there is only an ‘Act only’ policy and decide the rights of the parties in accordance with such a presumption. On the other hand, if we accede to the request of the learned counsel for the insurer, only one of the two consequences may follow. Either the insurance company succeeds in proving Mark 48/1 or it does not. If it does not succeed in proving the document, we are back to square one in the sense that we must resort to the assumption that the policy was an ‘Act only’ policy. On the other hand, if the insurance company succeeds in proving the document, it would be exhibited, would form part of the record of the case and could then be read as evidence and would enable this court to examine the facts of the case in relation thereto on merits. If, however, we accede to the request of the learned counsel for the insurer, we feel that it would entail considerable expenditure in terms of public time, which is not justified in view of our observations made hereinabove. On the facts and in the particular circumstances of the case, we are of the opinion that interest of justice would be served and there will be no prejudice to any of the parties if we examine the facts of the case and the law applicable thereto, acting on both the suppositions in turn, i.e., on the supposition that the policy in question is an ‘Act only’ policy and also on the supposition that it forms part of ‘evidence’ on the record of the case and that the court can, therefore, look into the same. We propose to adopt this course particularly in view of the fact that, as we shall presently show, the ultimate outcome and result of the present appeal would be, in either case, the same.
13. We now consider the first alternative, viz., that the policy in question is an ‘Act only’ policy. Obviously such a policy would have been issued on account of and in terms of Section 95 of the Act read with the proviso thereto. A plain reading of Section 95(1)(b)(ii) indicates that such a policy would not be required to cover a passenger travelling in a goods vehicle. In other words, a person who is travelling as a passenger and particularly a gratuitous passenger on a goods vehicle would not be required to be covered by an ‘Act only’ policy under Section 95(1) of the Act. Moreover, even if we refer to the proviso to Section 95(1), it becomes clear that such a policy shall not be required to cover the liability in respect of an employee of the insured (other than a liability arising under the Workmen’s Compensation Act, 1923, where such employee is actually engaged in driving the vehicle, or in the case of a goods vehicle, such employees as are being carried in the vehicle).
13.1. As we have already observed hereinabove and have recorded the finding of fact that the claimant was not travelling in the vehicle as an employee of the owner, he would not be required to be covered under Section 95(1) of the Act. Thus, we have no hesitation in concluding that if the policy in question is only an ‘Act only’ policy, it would not afford any coverage in favour of the owner of the vehicle in respect of the claimant.
14. We shall now consider the alternative case, on the supposition that the insurer would succeed in proving Mark 48/1 if such an opportunity is given to it. Acting on this supposition, we may for the time being look upon Mark 48/1 as having been exhibited and examine the same as if it is evidence on the record of the case.
14.1. Looking at the said document we find that it is a true copy of the original policy on its printed form, with the words ‘true copy’ printed boldly across the page. The same has been signed by an authorised representative of the insurer. We find that it is in respect of the tanker in question and in favour of the owner. However, the policy in question affords coverage to one driver and one cleaner on payment of additional premium of Rs. 8/- each, inasmuch as it covers ‘comprehensive risks’. However, on the facts and in the circumstances of the case and in view of our earlier finding that the claimant was not an employee of the owner, let alone a driver, this clause by itself would not afford coverage in favour of the owner. What is material is that the policy has been issued subject to endorsement Nos. 16, 21, 22, 23 and 26 annexed to the policy. What is relevant here is endorsement No. 16 which is technically called IMT-16. We may note that this IMT-16 which forms part and parcel of the policy, and to which the terms of the policy are subject, is not actually on the record of the case as having been annexed to the copy of the policy. We refer to and look into the same inasmuch as the said IMT-16 is admittedly a standard clause adopted by all insurance companies whenever such an endorsement is applicable to any policy which is subject to such an endorsement. In this context we may also note that since the policy is subject to IMT-16 the necessary implication is that the conditions and stipulations as provided by the said endorsement would have not only a material bearing on the liability covered by the policy, but would also govern the interpretation of the policy in question.
14.2. The said IMT-16 reads as under:
IMT-16. Legal liability to persons employed in connection with the operation and/or maintenance and/or loading and/or unloading of motor vehicles.-In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the company shall indemnify the insured against his legal liability as under:
The Workmen’s Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this endorsement, the Fatal Accidents Act, 1855, or at common law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading and/or unloading) whilst engaged in the service of the insured in such occupation in connection with the motor vehicles and will in addition be responsible for all costs and expenses incurred with its written consent.
The premium having been calculated at the rate of Rs. 8/- per driver (and/or cleaner and/or conductor and/or person employed in loading and/or unloading) the insured shall certify at the expiry of each period of insurance the maximum number of drivers and/or cleaners and/or conductors and/or persons employed in loading and/or unloading employed at any one time during such period in connection with the motor vehicle belonging to him and the premium shall be adjusted accordingly:
Provided always that:
(1) This endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurance company or group of underwriters a policy of insurance in respect of liability as herein defined for his general employees.
(2) The insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations.
(3) The insured shall keep a record of the name of each driver, cleaner, conductor or person employed in loading and/or unloading and the amount of wages, salary and other earnings paid to such employees and shall at all times allow the company to inspect such record.
(4) In the event of the policy being cancelled at the request of the insured no refund of the premium paid in respect of this endorsement will be allowed.
Subject otherwise to the terms, exceptions, conditions and limitations of this policy except so far as is necessary to meet requirements of Section 95 of the Motor Vehicles Act, 1939.
15. In the context, proviso 3 of the said endorsement is relevant. This proviso makes it mandatory on the part of the insured to maintain a record, which shall specify the name of each driver, cleaner, conductor or person employed in loading and/or unloading, and further that such record shall specify the amount of wages, salary, and other earnings paid to such employees, and shall at all times allow the company to inspect such records. The learned counsel for the insurer has emphatically submitted that this condition has been violated by the owner and that, therefore, since IMT-16 has not been complied with, the owner would not be permitted to claim the benefit of the policy which would otherwise be available to him. Under the circumstances, the insurer would not be liable to meet the award that may be passed against the owner. In view of the evidence on record it becomes clear that although the partner of the owner firm claims that the appropriate records have been maintained, he does not claim that the records as contemplated by proviso 3 to the said IMT-16 have been maintained. In any case, such records have not been produced. Even otherwise there is a specific admission on the part of the partner of the owner that the accounts of the firm and other statutory registers maintained under the Bombay Shops and Establishments Act do not contain any reference to either the employment of the claimant and/or his attendance as an employee and/or the wages paid to him. Thus, in view of the state of evidence on record we have no hesitation in coming to a conclusion that proviso 3 to the said IMT-16 has not been complied with by the owner and that, therefore, the owner cannot claim the benefit of the policy in respect of any award that may be passed against the owner. In other words, the insurer will be exonerated from the liability in respect of any award passed against the owner.
16. It is further submitted by the learned counsel for the insurer that even otherwise the vehicle in question was being used in an illegal manner inasmuch as it was cany-ing, in the form of the claimant, either an unauthorised passenger or a trespasser, inasmuch as the vehicle being a ‘goods vehicle’ could not in law cany any employee other than the actual driver, cleaner and/or the specified employees who would be authorised to travel in the vehicle. As against this the learned counsel for the claimant submitted that merely because the claimant was travelling in a goods vehicle as a gratuitous passenger, it does not make his presence there unauthorised or illegal.
According to him it is for the insurer to prove that the goods vehicle in question, i.e., specific vehicle was not authorised to carry such a passenger. According to him the vehicle was being plied in accordance with the terms and conditions of the permit issued by the competent Regional Transport Authority, which authorised the carriage of such passengers.
16.1. With this contention in mind we have examined the permit in question which is at Exh. 81. This permit merely authorises the use of the goods vehicle in question to ply on the roads as a goods vehicle, subject to the terms and conditions specified in the permit. In this context condition No. 4 specifically contemplates that the vehicle shall always comply with the requirements of Chapter 5 of the Motor Vehicles Act, 1939 and the Bombay Motor Vehicles Rules, 1959. Moreover, condition No. 12 of the said permit specifically contemplates that the number of persons when carried shall not exceed the number as provided in the rules of the Bombay Motor Vehicles Rules, 1959. On a plain reading of condition No. 12 we find that it refers to ‘number of persons when carried’ and obviously this includes a reference to both employees and non-employees, and may perhaps also include passengers who are gratuitous passengers or passengers earned for hire or reward. Under these circumstances it would be necessary to examine Rule 118 of the Bombay Motor Vehicles Rules, 1959.
16.2. This rule specifically contemplates, as the heading of the rule shows, “carriage of persons in goods vehicles.” Sub-rule (1), firstly, created a general bar against carriage of persons in a goods vehicle. This general bar, however, is mitigated or diluted by the phrase ‘subject to the provisions of this rule’. The proviso to Sub-rule (1) contemplates that in the case of a goods vehicle other than a light transport vehicle, not more than 7 persons may be carried, subject to a further proviso that such persons shall come within the specified category of persons as contemplated by the said proviso, viz., the owner of the vehicle, the hirer of the vehicle, or a bona fide employee of the owner or hirer of the vehicle or a police officer in uniform travelling on duty. In view of the factual finding recorded by us hereinabove it is clear that the claimant does not come within the category of any of the persons stipulated in the said proviso. Thus, the general embargo against the carriage of persons in a goods vehicle under Sub-rule (1) continues to operate. However, Sub-rule (1) itself is subject to Sub-rule (2) of Rule 118. Sub-rule (2) itself is subject to Sub-rules (4) and (5) of Rule 118. The effect of Sub-rule (2) is only that a larger number of persons than the number contemplated under the proviso to Sub-rule (1) may be carried in the vehicle subject to a further condition that no goods at all are carried in addition to such persons, and that such persons are earned free of charge in connection with the work for which the vehicle is used, and further that the conditions of the permission as contemplated by Sub-rule (2) are also made conditions of the permit under which the vehicle is permitted to operate. As we have seen the permit in question at Exh. 81, we find that it does not contemplate that the vehicle in question may carry more than 7 persons. In any case, on the facts of the case the number of persons carried is not relevant. We may, however, observe that even if Sub-rule (2) were relevant, such persons could only be carried if they were earned in connection with the work for which the vehicle is used. In view of our factual finding recorded hereinabove, the claimant was not being carried in connection with the work for which the vehicle was being used, since he was not an employee of the owner, and was not the hirer of the vehicle nor was he a bona fide employee of the hirer of the vehicle. Thus, a combined reading of Sub-rules (1) and (2) does not assist the case of the claimant any further. The permit in question, viz., Exh. 81 and particularly the condition No. 12 therein specifically makes the permit subject to Rule 118. In other words, the permit does not contemplate the carriage of more than 7 persons, and in any case it does not even contemplate the carriage of a person of the category of the claimant, viz., a gratuitous passenger. Although we have noted that Sub-rule (2) is subject to the provisions of Sub-rules (4) and (5), the latter Sub-rules are not relevant for the purposes of present discussion inasmuch as it has no bearing on the facts of the case, particularly in view of the factual finding recorded by us hereinabove. Thus, the attempt on the part of the learned counsel for the claimant to rely upon Rule 118 and the consequential permit, is of no avail and must fail.
17. On this aspect, therefore, we are obliged to conclude that even if the policy were taken to be ‘evidence’ on the record of the case, the same would not afford coverage to the owner in respect of the claimant nor would it impose any liability upon the insurer to meet any award that may be passed against the owner.
18. Thus, as discussed hereinabove, whether we regard the policy in question to be an ‘Act only’ policy or whether we actually look into the policy document, the conclusion is identical, viz., the insurance coverage under the policy in respect of the vehicle in question, and reflecting the contract of insurance between the insurer and insured, does not impose any liability upon the insurer to meet the liability of an award that may be passed against the owner in respect of the claimant.
19. We may also note in passing that neither the claimant nor the owner has preferred any cross-appeal nor have they preferred any cross-objections in the present appeal by the insurer.
20. To summarise, we record a finding that the claimant was not an employee of the insured, that he was not travelling in the vehicle at the relevant point of time as an employee, and that the contract of insurance between the insurer and the insured would not impose any liability upon the insurer to meet any liability under an award that may be passed against the insured. We, therefore, hold that the Tribunal was in error in making the appellant insurer jointly liable for the award passed in the claim petition. This finding is, therefore, set aside. We make it clear that we do not interfere with the quantum of the award in favour of the claimant, neither do we interfere with the liability of the owner of the vehicle in question.
21. This appeal is, therefore, allowed and the appellant insurer is absolved of all liability to meet the award passed by the Tribunal against the owner of the vehicle and in favour of the claimant.
22. We note that when the present appeal was admitted, stay against execution of the award in question had been granted on condition that the appellant insurer deposits the amount of the award together with costs and interest thereon before the Tribunal. It appears that such a deposit had been made and consequential orders had also been passed as regards investment and disbursement from the amount so deposited. In this context we direct that the appellant insurer will be at liberty to liquidate such investment. As regards the part of the deposit which may have been disbursed to the original claimant, the appellant insurer shall be at liberty to recover such amount.
23. On the facts and in the circumstances of the case we pass no order as to costs. Decree to be drawn accordingly.