Govind Transport Company v. Chunaki alias Thanki — 1990 DIGILAW 198 (GUJ)

JUDGMENT : S.D. Dave, J. This First Appeal filed by the owners of the motor truck No. GTE 8685 arises out of the judgment and award pronounced by the learned M.A.C.T., Vadodara in a group of matters decided on 29th January, 1979, awarding the total compensation of Rs. 43,500/- to one of the injured applicants, Bai Chunaki and exonerating the insurer on the ground that the injured was an unauthorised passenger in the goods vehicle and that at the relevant time the motor truck involved in the accident was being driven by a person who was not holding a valid licence to drive. 2. Bai Chunaki Virla had filed the M.A.C. Petition No. 201 of 1977 in the court of M.A.C.T. at Vadodara against seven opponents. The opponent No. 1 is the driver of the motor truck involved in the accident. The original opponent No. 2 was joined in the capacity of a conductor/a cleaner attached to the above said motor truck. The opponent No. 3, the firm and opponent Nos. 4, 5 and 6, the partners of the firm, were joined in the proceedings in the capacity of the owners. The opponent No. 7 was impleaded in the proceedings as the insurer of the vehicle. 3. One Kailash Yadav was attached to the motor truck No. GTE 8685 and the opponent No. 2, Mohmed Hanif, was working as a cleaner or conductor on the above said vehicle. The motor truck had gone towards Rajpipla on 6.3.1977 with certain cargo and the same was unloaded at Rajpipla. Later on the driver and the cleaner had gone to Chhotaudepur on 8.3.1977. It appears that they were in search of a cargo which could be collected and unloaded at Ahmedabad on the return journey. At about 8.30 a.m. on 8.3.1977 the opponent No. 1, driver, had left the motor truck near the railway station and he had gone to a hotel situated in the vicinity. It appears that the ignition key was left behind by the driver and it was attached to the ignition lock at the relevant time. Meanwhile, one carting agent or broker who has been referred as Sabu throughout the proceedings, had come there. He had requested the opponent No. 2, the cleaner, to take the vehicle from where it was parked. It appears that the ignition key was left behind by the driver and it was attached to the ignition lock at the relevant time. Meanwhile, one carting agent or broker who has been referred as Sabu throughout the proceedings, had come there. He had requested the opponent No. 2, the cleaner, to take the vehicle from where it was parked. Accordingly, instead of the cleaner, Sabu himself had started the vehicle and after covering some distance they were able to secure a group of persons consisting of tribals as the passengers. The tribals had boarded in the motor truck and Sabu was on the steering wheel. It appears that the truck was driven for some distance and that when it had reached near a place known as Singhala Ghati the carting agent Sabu had collected certain amount from each of the passengers and he had returned. The opponent No. 2, cleaner, was on the steering wheel and the truck was driven hardly for about 100 to 200 ft. and had reached near a place situated between villages Kharajawant and Dungargam but at that juncture the truck had overturned and inmates of the truck including the claimant Bai Chunaki had sustained certain injuries. It appears that because of the accidental injuries sustained by certain inmates of the motor truck three persons had died while five persons had received various injuries. Bai Chunaki had also sustained severe injuries and it appears that later on during the course of treatment one arm was required to be amputated. As a result of this motor vehicular accident 8 M.A.C. petitions came to be filed before M.A.C.T. at Vadodara. The application filed by Bai Chunaki came to be registered as MAC. Case No. 201 of 1977, the group of matters were decided by the learned M.A.C.T., Vadodara, by common judgment by the orders dated 29.1.1979. The Tribunal had reached the conclusion that the claimant Bai Chunaki was entitled to total compensation of Rs. 43,500/-but the Tribunal had taken the view that the opponent No. 7, the insurer, would not be liable to satisfy the award because Bai Chunaki was an unauthorised passenger in a goods vehicle. It was also a finding recorded by the learned M ACT., Vadodara, that the person driving the vehicle was not holding a valid licence to drive and therefore also the insurer would not be liable to satisfy the award. It was also a finding recorded by the learned M ACT., Vadodara, that the person driving the vehicle was not holding a valid licence to drive and therefore also the insurer would not be liable to satisfy the award. It appears that the other claimants who had received comparatively smaller amounts have not filed appeals but the present appeal has been filed by the appellants who are the owners of the vehicle against the finding recorded by the learned M.A.C.T. that the opponent No. 7, the insurer, would not be liable to satisfy the award. It is in this way that this appeal comes before us for adjudication. 4. Before proceeding further, it requires to be appreciated that the present one is an appeal filed by the appellants who are the owners of the vehicle involved in the accident. The amount awarded by the learned M ACT., Vadodara, has been deposited and it appears that later on in view of the orders pronounced by this court the amount has been paid to the injured claimant, half of the amount was made payable without any security but the remaining half of the amount was made payable only after having the security from the applicant. It appears that the entire amount which was deposited by the present appellants has been paid to the injured applicant. 5. Mr. M.R. Barot and Mr. M.C. Barot, the learned advocates, appear on behalf of the appellants. Mr. Kartikeya Rawal, learned advocate for Mr. Akshay H. Mehta appears for the respondent No. 1, Mr. R.H. Mehta, learned advocate, appears for respondent No. 2, Mr. B.B. Oza, learned advocate, is on the record for respondent Nos. 3 and 4 but he is not present. 6. Mr. M.C. Barot, the learned advocate, who appears on behalf of the appellants before us has contended that the learned M.A.C.T., Vadodara, has committed a great error in coming to the conclusion that the insurer was not liable to satisfy the award. Mr. Barot has urged that the view taken by the learned M.A.C.T., Vadodara, is to the effect that the insurer would not be liable to satisfy the award, firstly, because the applicant was an unauthorised passenger in a goods vehicle and that her risk was never required to be covered nor in fact it was covered by the insurance policy. Mr. Barot has urged that the view taken by the learned M.A.C.T., Vadodara, is to the effect that the insurer would not be liable to satisfy the award, firstly, because the applicant was an unauthorised passenger in a goods vehicle and that her risk was never required to be covered nor in fact it was covered by the insurance policy. Mr. Barot has also pointed out that the second ground on which the insurer has been exonerated is the finding recorded by the learned Tribunal that at the relevant time the vehicle was being driven by the person who was not holding a valid licence to drive. But Mr. Barot has urged that the evidence on record goes to show very clearly that the driver had left the vehicle unattended in a public place and later on carting agent Sabu and the cleaner Mohmed Hanif had taken away the vehicle and later on they had inducted the applicant 1/ persons in the vehicle as the passengers. Mr. Barot, therefore, has urged that the very action on the part of the driver to leave behind the vehicle unattended in a public place with the ignition key in its lock amounts to a gross negligence and looking to the settled legal position in this respect the driver would be guilty of rash and negligent action and he would be liable to satisfy the award. It is also the further contention raised by Mr. Barot that when the driver appears to be liable for the tortious act the owners would be liable for the compensation on the principle of vicarious liability but the vehicle was duly insured at the relevant time. It is further contended by Mr. Barot that even if it is accepted that the applicant was an unauthorised passenger in the goods vehicle then also the insurer cannot be exonerated because it is not proved by the insurer by producing necessary permit to show that the vehicle was not authorised to carry passengers for hire or reward. Mr. Barot, therefore, has urged that looking to the Full Bench decision of this High Court the insurer would be liable. Mr. Barot, therefore, has urged that the present appeal deserves to be allowed and the insurer also requires to be made liable for the awarded amount. 7. Mr. Kartikeya Rawal who appears for Mr. Mr. Barot, therefore, has urged that looking to the Full Bench decision of this High Court the insurer would be liable. Mr. Barot, therefore, has urged that the present appeal deserves to be allowed and the insurer also requires to be made liable for the awarded amount. 7. Mr. Kartikeya Rawal who appears for Mr. Akshay H. Mehta for the respondent No. 1 has supported the arguments of Mr. Barot and has urged that in this case the insurer would be definitely liable. But Mr. R.H. Mehta, the learned advocate who appears for the insurer, has contended that the learned Tribunal was perfectly justified in exonerating the insurer from the liability. It is the contention raised by Mr. R.H. Mehta for the insurer that Bai Chunaki who came to be injured was an unauthorised passenger in the goods vehicle and that at the relevant time the vehicle was being driven by the cleaner of the truck who was not holding a valid licence to drive. Mr. Mehta has also urged that it is an admitted position duly admitted by one of the partners of the owner firm that the permit acquired by them was only for using the vehicle as a goods vehicle and that the permit was not for carrying of the passengers for hire or reward. Mr. Mehta was conscious of the fact that the permit was not produced before the Tribunal and therefore he has urged that when there was an express admission in this respect made by one of the owners there was no necessity of production of the permit which is for plying vehicle as a goods vehicle. 8. Anyhow Mr. R.H. Mehta has further contended that if we are going to take a view that the insurer would be liable to satisfy the award then in that case the important question regarding the extent of liability of the insurer would arise. According to Mr. Mehta when a goods vehicle is being used for carriage of passengers for hire or reward even occasionally then also when it is being used for the above said purpose it becomes a passenger vehicle and in that view of the position the insurer would be liable to the extent of the statutory limit meant for the passenger. Mr. Mehta has urged that at present the statutory limit in such case would be of an amount of Rs. Mr. Mehta has urged that at present the statutory limit in such case would be of an amount of Rs. 15,000/- but when the accident had taken place according to the old Act, the liability of the insurer for a passenger would not exceed an amount of Rs. 5,000/-. Mr. Mehta, in the alternative, has contended that even if we are inclined to take the view that the insurer would be liable to satisfy the award then in that case also the liability of the insurer would not exceed an amount of Rs. 5,000/-. 9. Mr. B.B. Oza, the learned advocate for respondent Nos. 3 and 4, is not present before us and therefore there are no submissions on behalf of above said respondents. 10. The Tribunal had taken the view that the insurer would not be liable to satisfy the award. The above said ultimate finding of the Tribunal is based upon certain conclusions. The Tribunal had taken a view that there is no truth in the version put forth by some of the opponents that the key was not handed over by the truck driver. It is also a conclusion arrived at by the learned Tribunal that each of the inmates of the truck, including the injured applicant, was charged an amount of Rs. 1.50. The learned Tribunal on the appreciation of the evidence had also recorded a finding that it cannot be accepted that the carting agent Sabu had committed theft of the vehicle. According to the Tribunal, further the truck was driven by the cleaner Mohmed Hanif in the course of the employment of the opponent No. 1 and that he was acting as an agent of the owner. In view of this position the Tribunal had reached the conclusion that the driver and the owners of the vehicle would be liable to satisfy the award. But looking to the fact that Bai Chunaki was an unauthorised passenger in the goods vehicle and further looking to the fact that at the relevant time the vehicle was being driven by the cleaner who was not holding a valid licence to drive, the insurer would not be liable to satisfy the award. 11. With a view to examine the correctness of the above said findings we shall have to refer to the evidence on record. 12. 11. With a view to examine the correctness of the above said findings we shall have to refer to the evidence on record. 12. Bai Chunaki has been examined as the witness No. 1 for the claimants at Exh. 72. She has stated that the opponent No. 2, namely, the cleaner Mohmed Hanif was driving the truck and they had no goods to be transported. It is also her say that she had paid an amount of Rs. 1.50 as the fare. Bai Jatadi whose evidence appears at Exh. 73 has also stated that the cleaner had collected an amount of Rs. 1.50 from her 1/ persons and Sabu the broker or the carting agent had started the vehicle and had driven the same upto Panvad. Thereafter, according to Bai Jatadi, Sabu had got down and the steering wheel was handed over to the cleaner who was driving the vehicle at an excessive speed. It is also her say that after covering a distance of about 7 to 8 miles the vehicle had overturned. Therefore Bai Jatadi also says very clearly that she had paid the fare along with other persons and though Sabu had started the truck the cleaner was driving the same when the accident had taken place. Kaliben has also stated at Exh. 74 that she had paid an amount of Rs. 1.50 to the cleaner and that at the relevant time the opponent No. 2 the cleaner was driving the vehicle. Same is the say of another applicant Diwaliben at Exh. 75. According to her, Sabu had started the motor truck from Chhotaudepur, he had got down at Panvad and the cleaner was driving the vehicle at the time of accident. Witness Hatudia has also stated in his evidence at Exh. 77 that Sabu had started the truck from Chhotaudepur but he had got down at Panvad and later on the cleaner, namely, the opponent No. 2 was on the steering wheel. He has also stated that the cleaner had collected the fare, namely, an amount of Rs. 1.50 from each of them. Looking to the above said evidence tendered by the claimants it becomes clear that they had paid certain amount, namely, an amount of Rs. 1.50 to the cleaner. It is also clear that Sabu had taken the truck from Chhotaudepur and he was driving the same up to Panvad. 1.50 from each of them. Looking to the above said evidence tendered by the claimants it becomes clear that they had paid certain amount, namely, an amount of Rs. 1.50 to the cleaner. It is also clear that Sabu had taken the truck from Chhotaudepur and he was driving the same up to Panvad. It is also abundantly clear that when the accident had occurred and when the truck had overturned the motor vehicle in question was being driven by opponent No. 2 Mohmed Hanif, the cleaner. 13. Kailash Yadav, the driver of the truck, has examined himself at Exh. 81. He has stated that they had gone to Rajpipla from Ahmedabad on 6.3.1977 and on the day of the accident they had gone to Chhotaudepur with the empty truck. He has further stated that he had left the truck on the road on one side at the railway station at about 9.00 a.m. and thereafter he had gone to take tea. He has further stated that he had left the cleaner on the truck and the keys were with him. His say further is that he had come out from the hotel after half an hour and had seen that the truck was not there and therefore he had gone to a nearby office and had sent telephonic message to the owner of the truck. Later on, according to him, he had gone to Chhotaudepur Police Station ostensibly with a view to lodge the complaint for the missing vehicle, but according to him he was arrested and he was later on taken to the place where the truck was lying. Therefore, during the course of examination-in-chief Kailash, the driver of the truck, had tried to suggest that the truck was stolen in his absence and that the key was in his possession. But when his evidence, decided on the touchstone of the cross-examination, is referred, it appears that there is entirely a different version. He has stated that his master, namely, the owner of the truck had reached Chhotaudepur on the next day and he had not told him that the vehicle was stolen. He has denied the suggestion made to him that the ignition key was left by him behind in the motor truck. He has stated that his master, namely, the owner of the truck had reached Chhotaudepur on the next day and he had not told him that the vehicle was stolen. He has denied the suggestion made to him that the ignition key was left by him behind in the motor truck. It is also a suggestion made by him that the truck was a diesel vehicle and it could be started with a push only and that the key would not be necessary to start the vehicle. He has denied the suggestion that while he was taking tea Sabu and Mohmed Hanif had taken away the vehicle with his expressed permission. It appears that the police had recorded his statement and he was confronted with the say in the police statement. He has denied the suggestion made to him that he had stated before the police in his statement that cleaner Hanif was on the vehicle and that the key was left in the vehicle. Looking to this denial made by driver Kailash the police officer who had recorded the statement also came to be examined. But before going to his evidence the reference requires to be made to the evidence of the cleaner Mohmed Hanif at Exh. 83. According to the version given by him the driver had gone for refreshment and he was cleaning the engine by opening bonnet and at that time carting agent Sabu had come there and had asked him to go in his company with the vehicle to load the goods. The say of Mohmed Hanif further is that they had given a push to the vehicle and it was started and the same was taken to the railway station. According to him, Sabu had taken about 50 to 60 passengers in the vehicle and they had left Chhotaudepur. According to him the vehicle was stopped at Singhala Ghati and Sabu had collected the fare from the passengers and Sabu had got down from the vehicle at Panvad. According to him, he was required to drive the vehicle by the passengers under duress/compulsion/ force and threat. According to him, he had driven the vehicle but within 50 steps the vehicle had turned turtle. During cross-examination, he has denied the allegation that the key was left in the vehicle. According to him, he was required to drive the vehicle by the passengers under duress/compulsion/ force and threat. According to him, he had driven the vehicle but within 50 steps the vehicle had turned turtle. During cross-examination, he has denied the allegation that the key was left in the vehicle. As noticed above, his say before the Tribunal is to the effect that he had given a push to the vehicle and had started the same. Because of this position he was reminded during cross-examination that no such contention was ever raised by him in the written statement. Though he has not given any specific answer in this respect he was obliged to admit that he had not instructed his advocate to make a specific averment in the pleadings that the truck could be started in absence of the key by giving a push. It therefore becomes clear that though he comes before the Tribunal with a version that the truck could be started by giving a push only such a contention has not been taken by him in the written statement. 14. PSI Diol has tendered his evidence at Exh. 92. He was called to the witness-box with a view to prove the statement of driver Kailash which was recorded by him during the course of the investigation of the offence registered against the driver, cleaner and Sabu, the carting agent. PSI Diol has stated that Kailash the driver had stated before him in his police statement that he had left the key in the vehicle and had gone to a nearby hotel for taking tea and that at that time the ignition key was in the truck. According to PSI Diol, driver Kailash had also stated in his statement that at that time cleaner Hanif was on the vehicle and that when he had left the vehicle the key was left behind in the vehicle. It therefore becomes clear that though driver Kailash tries to repudiate the above said position his version at the earliest occasion before the police was to the effect that he had left the vehicle unattended with the ignition key in the vehicle itself. 15. It therefore becomes clear that though driver Kailash tries to repudiate the above said position his version at the earliest occasion before the police was to the effect that he had left the vehicle unattended with the ignition key in the vehicle itself. 15. In view of the above said evidence we are of the opinion that the driver Kailash had left the vehicle unattended in a public place near the railway station at Chhotaudepur and that at that time the ignition key was in the truck itself. It appears that the conclusion which runs contrary to our above said opinion recorded by the learned Tribunal does not appear to be correct. We therefore think to proceed further with the finding that when the opponent No. 1, the driver, had gone for taking refreshments or tea the truck was left behind at the railway station at Chhotaudepur with the ignition key in the vehicle itself. 16. By adopting the above said course of conduct it appears very clearly that the opponent No. 1, the driver, was acting in gross negligence. He could have visualised that any unauthorised man or even a minor or a child not knowing driving would be tempted to start the vehicle for more than one reason. It also requires to be appreciated that by doing so the opponent No. 1 driver had committed the breach of Section 84 of Motor Vehicles Act, 1939. 17. Section 84 of the Motor Vehicles Act, 1939 which was applicable at the time of the accident runs thus: No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measure taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. A reference to the above said text of Section 84 would go to show that a person driving a motor vehicle shall not cause or allow the vehicle to remain stationary in any public place unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and such other measures are taken to ensure that the vehicle cannot be put in motion in the absence of a driver. We feel that in leaving behind the truck with the ignition key on a public place like railway station at Chhotaudepur, the opponent No. 1 driver had committed a breach of the above said statutory requirement as embedded in Section 84 of the Motor Vehicles Act, 1939 and his action amounts to gross negligence. 18. This court had an occasion to examine such a case in Gujarat State Road Trans. Corporation v. Haribhai Vallabhbhai Darji, 1984 ACJ 72 (Gujarat). In that case before the Division Bench of this court, admittedly the driver had left behind the truck which was without a shutter. It could be started only by pushing a button and that the bus could not be locked as there was no shutter or a door on one of the sides of the bus. The bus could be started by merely pressing a push button. In view of this position, the Division Bench of this court had taken a view that it was gross negligence on the part of the driver of the bus to place the vehicle unattended in a thickly populated locality where any person could enter the bus and start the same. The Division Bench had also noticed that even for the sake of curiosity children may also enter the bus and any moment the accident could occur. In the view of the Division Bench of this High Court, therefore, placing that type of bus in a thickly populated locality by the driver of the bus was itself a negligent act. This decision rendered by the High Court of Gujarat in the above said decision supports the view which we are taking in the instant case. 19. A similar view came to be taken by the Patna High Court in Dwarka Prasad Jhunjhunwala v. Shushila Devi, 1983 ACJ 570 (Patna). This decision rendered by the High Court of Gujarat in the above said decision supports the view which we are taking in the instant case. 19. A similar view came to be taken by the Patna High Court in Dwarka Prasad Jhunjhunwala v. Shushila Devi, 1983 ACJ 570 (Patna). In that case the driver had gone out to take tea leaving the key in the car by mistake and in the meantime some unknown boys of the locality had started the car which had caused severe injuries to one Ramratan Singh, who succumbed to his injuries on way to the hospital. In view of these facts the Division Bench of the Patna High Court had taken the view that when the vehicle was left unattended in the public place the driver was negligent. 20. A similar question had also arisen for consideration before the Supreme Court of India in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC). While deciding the above said matter the Supreme Court was conscious that there was a difference of opinion between some of the High Courts of the Nation. The Supreme Court therefore wanted to lay down the law which would ensure that the law does not remain different depending on the situs of the accident. The Supreme Court had the occasion to consider various decisions by different High Courts of the Nation. Ultimately the Supreme Court had taken the view that the opponent No. 1, the driver, would be liable and the owners would be liable on the basis of the principle of vicarious liability. In the view of the Supreme Court the insurer would also be liable to satisfy the award. It therefore becomes clear that a Division Bench of this High Court and the Supreme Court of India have also taken the view that in such cases the driver would be grossly negligent. A reference to the Supreme Court decision would go to show that in that case the truck had come from Barajadi and upon unloading at Baroda, the driver had gone for purchasing snacks from the opposite shop leaving the engine running. The ignition key was in the ignition lock. The driver had handed over the control of the truck to the cleaner. The ignition key was in the ignition lock. The driver had handed over the control of the truck to the cleaner. It, therefore, becomes clear that in the identical facts the Supreme Court had reached the conclusion that the driver would be liable and his action would be a grossly negligent action. 21. In view of the above said position we are of the opinion as stated above that in the instant case also when the driver had left the vehicle unattended with the ignition key in the vehicle itself, he was acting in violation of the duty cast on him under Section 84 of the Motor Vehicles Act, 1939. He was guilty of an actionable wrong and he could be charged for the tortious act of leaving behind a motor vehicle unattended in the public place with the ignition key. In view of this position we feel no difficulty in coming to the conclusion that the driver was guilty of tortious act. It is an admitted position that the driver was working as the paid driver, servant and agent of the owners and therefore the owners of the vehicle would also be vicariously liable for the tortious act committed by opponent No. 1, the driver. But the question with which we are primarily concerned is as to whether the insurer in such a case would be liable or not. We do not get any assistance to decide this question from the above said 3 decisions, because in the instant case the applicant was a passenger in the vehicle which was driven by opponent No. 2, the cleaner, at the relevant time. In Gujarat case Gujarat State Road Trans. Corporation v. Haribhai Vallabhbhai Darji, 1984 ACJ 72 (Gujarat) not the passenger in the vehicle but the pedestrians were injured. Therefore, so far as the question regarding the liability of the insurer in case of a passenger in the goods vehicle is concerned we are not in a position to derive any assistance from the above said Gujarat High Court decision. The same is also true in respect of the Patna decision Dwarka Prasad Jhunjhunwala v. Shushila Devi, 1983 ACJ 570 (Patna). It was the case of a car which was being driven by some unknown boys and a pedestrian came to be injured and later on he had expired during the transit to the hospital. The same is also true in respect of the Patna decision Dwarka Prasad Jhunjhunwala v. Shushila Devi, 1983 ACJ 570 (Patna). It was the case of a car which was being driven by some unknown boys and a pedestrian came to be injured and later on he had expired during the transit to the hospital. The Supreme Court decision is also based upon some such facts. As noticed above, para 2 of the above said judgment at page 413 goes to show that the driver had gone away leaving behind the ignition key in the ignition lock, but that court had found that the driver was grossly negligent. But this recital of the fact does not show as to who were the persons injured. In view of this position we have made a reference to this High Court decision published in ILR 1972 Gujarat 301. But there again we have noticed that the narration of the case is the same as has been made by Supreme Court at para 2 of the judgment. In view of this position we had called for the judgment rendered by this High Court with a view to ascertain the facts and on scrutiny of the same it appears that there also it was not a case of a passenger in the truck. 22. In view of what has been stated above, it becomes clear that though in the instant case the opponent No. 1, the driver, would be liable for the tortious act of leaving behind the truck unattended with the ignition key in the ignition lock and though the owners of the vehicle would be vicariously liable for the above said negligent action on the part of the opponent No. 1, the driver, the question remains to be resolved as to whether the insurer would be liable to satisfy the award. In our opinion this question arises because in the instant case the applicant was an unauthorised passenger in the truck. Admittedly she is a person who was travelling in the goods vehicle as the passenger travelling for hire or reward. Looking to this position, in our view the reference required to be made to the Full Bench decision of this High Court in National Insurance Co. Ltd. v. Nathibai Chaturabhuj, 1982 ACJ 153 (Gujarat). Admittedly she is a person who was travelling in the goods vehicle as the passenger travelling for hire or reward. Looking to this position, in our view the reference required to be made to the Full Bench decision of this High Court in National Insurance Co. Ltd. v. Nathibai Chaturabhuj, 1982 ACJ 153 (Gujarat). In this decision after a careful consideration of certain other decisions of this High Court, the Full Bench had taken the view that the insurer in order to successfully disclaim its liability shall have to establish as under (para 28): (1) that on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward, (2) that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward, and (3) that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward. 23. There is on record the insurance policy at Exh. 70, which goes to show very clearly that there is a specified condition which excludes the use of the insured vehicle for the carriage of any passenger for hire or reward. In view of this position the condition No. 2 out of above said 3 conditions is duly established. So far as the condition No. 3 is concerned also, in our opinion there is no impediment in the way of the insurer, because in fact the vehicle was being used in breach of the specified condition on the occasion which had given rise to the claim by reason of the carriage of the passengers for hire or reward. The moot question which survives for our consideration is as to whether the condition No. 1 regarding the permit has been complied with or not by the insurer. 24. Ordinarily, the insurer would be liable to satisfy the Tribunal with cogent evidence that the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward. 24. Ordinarily, the insurer would be liable to satisfy the Tribunal with cogent evidence that the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward. Ordinarily, the insurer would be duty bound to adduce evidence in the above said respect and to satisfy the Tribunal that there was no permit for the carriage of the passenger for hire or reward. 25. But the facts of the instant case are slightly different. But before we advent the facts of this case we would like to make a reference to this High Court decision in Bai Dahiben v. Jesingbhai Bijalbhai, 1984 ACJ 150 (Gujarat). In this decision rendered by the learned single Judge of this High Court the view has been taken that in absence of any evidence regarding the fact that on the date of the contract of insurance the vehicle was expressly or implicitly not covered by a permit to carry the passenger for hire or reward the insurance company would be liable to satisfy the award. While coming to this conclusion the learned single Judge of this High Court had taken note of the fact that insurance company had failed to prove the fact that on the date of contract of insurance the vehicle was expressly or implicitly not covered by a permit to carry the passenger for hire or reward. The learned single Judge had also taken note of the fact that the permit was not produced by the concerned party and that therefore there was no evidence on record to show that the permit had in fact prohibited the carrying of passengers for hire or reward. Moreover, this question was also not agitated by the insured in the pleadings and it was also not argued before the Tribunal. In view of these facts the learned single Judge of this court had taken the view that in absence of the permit prohibiting the carriage of passengers for hire or reward the contention raised by the insurance company cannot be accepted. 26. But the facts are entirely different in the case on hand before us. One Joitaram Chaudhari who happens to be a partner of the firm has examined himself at Exh. 26. But the facts are entirely different in the case on hand before us. One Joitaram Chaudhari who happens to be a partner of the firm has examined himself at Exh. 84 and he has during the course of cross-examination made a candid statement by saying that the permit obtained by them is for a goods vehicle and under the permit they cannot carry the passengers. This statement made by the partner of the firm and one of the parties in the proceedings would amount to a clear admission on the part of the owners. By making the above said admission the owners have admitted the position that the permit was for plying the goods vehicle and secondly, under the permit the carrying of passengers for hire or reward was not permitted. Looking to the above said clear admission made out by one of the owners it appears very clear that the insurer was not obliged to bring any other evidence on record to prove the above said aspect of the case which stood duly admitted. The Gujarat High Court decision rendered by the learned single Judge in Bai Dahiben's case 1984 ACJ 150 (Gujarat), is based upon the fact that such a contention was never raised in the pleadings and that the point was also not agitated at the trial level and there was absolutely no evidence to warrant the conclusion that the permit was for a goods vehicle and that the carriage of passengers was prohibited under the permit. 27. Two more decisions of the Supreme Court of India also merit consideration at this juncture. In National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC), it was held that when the insurance company wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy. Relying upon this decision it was urged that in this case also when the permit has not been produced, one of the conditions laid down by the Full Bench of this High Court has not been complied with. But the Supreme Court decision in Rajendra Kumari v. Shanti Trivedi, 1989 ACJ 517 (SC), distinguishes the facts and principle laid down in the above said case, namely, National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC). But the Supreme Court decision in Rajendra Kumari v. Shanti Trivedi, 1989 ACJ 517 (SC), distinguishes the facts and principle laid down in the above said case, namely, National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC). The Supreme Court has said very clearly that in that case before them ( 1989 ACJ 517 ) the principle in 1988 ACJ 270 (SC) would not come into play because in the Tribunal the appellants had categorically admitted that the liability of the insurance company was limited to a certain extent only. In view of this position the Supreme Court has stated very clearly that it was not incumbent upon the insurance company to file the policy. 28. In the instant case also as noticed above there is a clear admission made by one of the partners of the firm which would be binding on all the partners of the firm who are the owners of the vehicle. They have admitted very clearly that the permit was for plying the vehicle as a goods vehicle and that they were not authorised under the permit to carry the passengers for hire or reward. In view of this admission we are clearly of the view that the condition No. 1 of the above said Full Bench decision rendered by this High Court in the case of National Insurance Co. Ltd. v. Nathibai Chaturabhuj, 1982 ACJ 153 (Gujarat), is duly established. 29. When we reach the above said conclusion it is clear that we want to emphasise upon the fact that in the instant case the insurer has been able to establish all the 3 requisite conditions to disclaim the liability of the insurer. If this is so, the insurer would not be liable to satisfy the claim. 30. The fate of this appeal would have been quite different if the applicant were to be not a passenger in the truck and if she were not to travel in the truck involved in the accident in the capacity as a passenger. In view of the above referred 3 decisions, one of Gujarat High Court, one of Patna High Court and one of the Supreme Court, we could have said without any difficulty that the driver would be guilty of a gross and negligent action and in that case the owners would be liable on the basis of the principle of vicarious liability. We could have also held the insurer liable to satisfy the award. But as noticed above the facts are different in the case before us. The accident had occurred when the injured applicant was travelling in the truck as the passenger for hire or reward. We have reached the conclusion that the 3 conditions as required in the Full Bench decision of this court in the case of Nathibai, 1982 ACJ 153 (Gujarat), are duly complied with and that therefore by establishing the above said 3 conditions the insurer is in a position to disclaim its liability. 31. Mr. Mehta, the learned advocate who appears on behalf of the insurer, has also raised other contentions touching on the question of the extent of the liability of the insurer. The view sought to be canvassed before us is that at any rate when the truck was being utilised or used for the carriage of the passengers for hire or reward the liability of the insurer would not exceed what is the statutory liability for a passenger in a passenger vehicle. But when we have reached the conclusion that the insurer is not liable to satisfy the award, in our opinion the above said contention as raised by Mr. Mehta does not survive for our consideration and we do not express any opinion on the above said question as raised by Mr. Mehta in this appeal. 32. The conclusion therefore is that the present appeal fails and the same requires to be dismissed. We accordingly dismiss the appeal with costs and confirm the order of the learned M.AC.T., Vadodara, exonerating the insurer from the liability to satisfy the award. 33. We are told that the amount awarded by the Tribunal has been deposited by the owners before the Tribunal at Vadodara, by the orders pronounced by this court in C.A. No. 1606 of 1979. We hope the above said award amount deposited by the owners must have been paid to the claimant. If at all the above said amount has not been paid to the claimant for any reason whatsoever, now the same shall be immediately paid to the applicant along with the costs and interest as per the award of the Tribunal. Appeal dismissed.