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2012 DIGILAW 1150 (GAU)

Putu Hazarika v. National Insurance Co. Ltd.

2012-09-28

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. This is an appeal by the owner of the vehicle against the judgement and award dated 22.06.2001 passed by the Motor Accident Claims Tribunal, Golaghat, Assam in MAC Case No. 142 of 2000. The findings as returned by the Tribunal as regards the accident that occurred on 01.06.2000 for rash and negligent driving of the vehicle bearing registration No. AS-03/7029, death of one Babuli Hazarika, son of the appellant who was travelling as the fare-paid owner of the goods in the said vehicle and its insurance coverage by the National Insurance Company Ltd. vide its policy No. 1999/6706393 issued from the Golaghat Branch are not in dispute by either of the parties or in the appeal. As such those findings stand affirmed and further appraisal thereof is avoided. 2. The question that has been projected in the appeal is that the Tribunal in defiance to the statutory provision as engrailed in Section 147 of the Motor Vehicles Act, 1988 has saddled the liability of payment on the owner of the vehicle. 3. Mr. J. Singh, learned senior counsel appearing for the appellant having referred to the finding of the Tribunal that: the offending vehicle was under a valid insurance coverage. But as argued by the learned counsel for the O.P. Insurance Company and after careful perusal of evidence of the defence witness, we find that the truck was used for carrying passengers. The police report clearly shows that as many as five persons died on the spot and eleven other sustained injuries. There were other passengers also who did not sustain injury, it clearly shows that the basic terms and conditions and limitations were violated by the insured. For carrying gratuitous passengers, the insured must pay additional premium for the purpose. That was also not paid. It is found that whether goods were carried or not is another fact but the real fact is that the deceased was travelling in the body of the truck along with the goods in the vehicle. In that case he should have travelled in the vehicle sitting near the driver where there is such accommodation. But it is clear that he travelled in the body of the truck. As such, he cannot be termed as owner of the goods travelling with the goods. In that case he should have travelled in the vehicle sitting near the driver where there is such accommodation. But it is clear that he travelled in the body of the truck. As such, he cannot be termed as owner of the goods travelling with the goods. Then it is clear that the insured owner of the vehicle allowed his truck carrying passengers without payment of any additional premium for the purpose with the O.P. Insurance Company. He did not stand on the dock. This is clear violation of terms and conditions of the policy. Hence, the O.R. National Insurance Company Ltd. cannot be made liable for payment of compensation in this case. He also submitted that this finding is grossly erroneous as well as misreading of the evidence that has been led by the claimant. 4. The claimant, the respondent No. 2 herein, pleaded that the deceased was travelling with goods (vegetables), the vehicle met with the accident as it got turtled and the deceased got the fatal injuries and succumbed to those injuries after having been taken to the hospital. The PW-2, Sri Boto Hazarika, stated that he alongwith 6-7 vendors of vegetable were travelling by the said vehicle. When the vehicle fell in the accident, five persons died at the spot, one of them was Babuli Hazarika, the deceased. The O.P. No. 1, Mr. Neuton Gogoi, a Branch Manager of the insurer stated in his deposition that the policy covered 6(six) persons carried in the vehicle in addition to the employees other than the driver. 5. Mr. J. Singh, learned senior counsel appearing for the appellant succinctly submitted that there is no sufficient proof that more than the persons beyond the limit were carried in the vehicle and as such the said finding of the Tribunal cannot be sustained on the scrutiny of law. 6. Mr. J. Singh, learned senior counsel appearing for the appellant has referred a decision in B.V. Nagaraju Vs. M/s. Oriental Insurance Company Ltd. as reported in AIR 1996 SC 2054 where the apex Court held as under: 7. It is plain reading from the terms of the Insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. M/s. Oriental Insurance Company Ltd. as reported in AIR 1996 SC 2054 where the apex Court held as under: 7. It is plain reading from the terms of the Insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident how could those added persons be said to be contributed to the causing of it is the poser, keeping apart the load it was carrying. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. In Sikand's case this Court paved the way towards reading down the contractual Clause by observing as follows: ....When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt or the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the exclusion clause' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carter's "Breach of Contract" vide paragraph 251. To quote: Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the 'main purpose rule', which may limit the application of wide exclusion clauses defining a promisor's contractual obligations. For example, in Glynn v. Murgeston & Co. [1893] AC 351, Lord Halsbury, L.C. slated: it seems to me that in construing the document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at: the whole instrument, and seeing what one must regard...... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the house of Lords in Suissee Atluntique Societe d' Armenian Maritime S.A. v. N.V. Rotterdamsche Kolen Centrale [1967] 1 AC 361. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract. 7. On the other hand, Mr. Chaliha, learned senior counsel appearing for the respondent No. 2 did not oppose the rationale as advanced by Mr. J. Singh, learned senior counsel appearing for the appellant for obvious reason. However, the respondent No. 1 preferred not to attend this proceeding despite due notice from Court as it is reflected in the Registry's note dated 08.03.2010. 8. On appreciation of the submissions as made by the learned counsel appearing for the appellant as well as on scrutiny of the records, this Court is of the view that the deceased was travelling with a large quantity of vegetables for sale in the Golaghat vegetables market. Thus, he was not a gratuitous passenger but a fare-paid owner of the goods travelling in the said vehicle. 9. Thus, he was not a gratuitous passenger but a fare-paid owner of the goods travelling in the said vehicle. 9. Except the G.D. Entry, photocopy of which has been placed in the record, there is no other materials to show that more than 6(six) persons were travelling by the said vehicle. The said G.D. Entry cannot be treated as a substantive piece of evidence for purpose of ascertaining that particular fact. Moreover, in view of the ratio as laid down by the apex Court in B.V. Nagaraju (supra) as well as on the substantive provisions as engrafted in Section 147 of the Motor Vehicles Act which has given a blanket coverage for the owner of the goods by the goods carriage. This Court holds that the Tribunal has substantially erred by shifting the liability to the owner. As such the said finding is interfered with and set aside. 10. As corollary to this, the appeal is allowed to the extent as indicated above. 11. The Respondent No. 1, National Insurance Company Ltd. is directed to pay the entire awarded sum within a period of 2(two) months from today in the Tribunal. However, in the fact and circumstances of the case, there shall be no order as to costs. Send down the LCRs forthwith.