Chameli Devi Shivanshankar Lal Vaishya v. New India Insurance Co Ltd

(1.) THIS is an appeal against the judgment and decree of the district Judge, Shivpuri, dated 23-7-1970, in Civil Appeal No. 72-A of 1966, against the judgment and decree passed by the Additional Judge to the Court of Civil Judge Class II, Shivpuri, on I9-9-I966, in Civil Suit No. 2-B/65 original Civil.

(2.) THE facts giving rise to this appeal are that the plaintiff Chameli devi is the owner of the truck No. 4915 MPG and the said truck is. insured with the respondent Company. On 5th August, 1961, while truck No. MPG 4915 was going from Jadhav Sagar towards Bhadaiya Kundi, Shivpuri, another truck No. MPG 3036, coming from Karbala collided with it and as a result of it, truck No. MPG 4915 was damaged. At the time of the accident, the truck was being driven by Hanumant Singh, its driver. A report was lodged with the Police, in which the said Hanumant Singh admitted that he was driving the truck at the relevant time. One Mr. P. N. Bhargava, the Claim Inspector of the defendant-respondent Company made enquiries. At the instance of Mr. Bhargava, the damaged truck was taken over to kanpur. There, the defendant got replacement of parts of the truck at the expenses of the plaintiff and kept the damaged parts with it and advised the plaintiff to await confirmation of the claim from the Regional Office of the defendant Company. During this period, the Police started prosecution of hanumant Singh in a criminal case and in those proceedings, Hanumant singh submitted that he was not driving the truck at the relevant time, but one Kailash, son of the plaintiff was driving the same. Therefore, the defendant informed the plaintiff by its letter dated 21-2-1962 as under:

"on the basis of report reveived, the claim has been assessed for rs. 4128. 83 net in accordance with the policy terms and conditions which please note. In the claim form you have stated that the vehicle was being driven by Shri Hanumant Singh, the driver of the vehicle, while subsequently, the said Hanumant Singh has declared in the Court at Shivpuri that the vehicle was being driven by Shri Kailash Narain. In view of this discrepancy we regret it shall not be possible for us to settle the claim, till this point is clarified to our satisfaction. We appreciate the inconvenience being caused to you, but regret that in the circumstances of the case we are under obligation to wait for the final judgment of the Court. "

Thus, it was submitted that the only objection for the payment of compensation was the doubt in the mind of the defendant Insurance Company as to who was driving the truck. In spite of all these things, the plaintiff persisted in her demand and as criminal case was taking time and the limitation for filing the suit was coming to an end, the plaintiff filed the present suit. The claim of the plaintiff was resisted by the Insurance Company.

(3.) AFTER enquiry, the trial Court came to the conclusion that at the time of the accident, the truck was driven by Hanumant Singh, but because the truck was carrying passengers, in violation of the terms of the Policy, the defendant is not liable to pay the damages. Holding this, the trial Court dismissed the Suit. Aggrieved by the judgment and decree of the trial Court, an appeal was presented before the District Judge. The District Judge also dismissed the appeal and confirmed the finding of the trial Court. Aggrieved by it, the present second appeal is filed.

(4.) IT was submitted before me that under the Policy of insurance, there was no bar for carrying passengers, but they should not be carried for hire or reward. If the passengers who were sitting in the truck were not carried for hire or reward, then, it is submitted that the judgments of the Courts below are contrary to law and the plaintiffs suit deserves to be decreed.

(5.) IN my opinion, the submission of the learned counsel is fallacious and cannot be accepted. The truck was used as goods vehicle and goods vehicle is defined under section 2 (8) of the Motor Vehicles Act, 1939, as under:-"goods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers;"the other definition which should be taken into consideration is that of permit which is contained in Section 2 (20) of the said Act. It is as under :-"permit" means the document issued by the Commission or a State or regional Transport Authority authorizing the use of a transport vehicle as a contract carriage, or stage carriage, or authorizing the owner as a private carrier or public carrier to use such vehicle;" the term goods is defined in Section 2 (7) of the said Act as under:-"goods" includes live-stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle;" there is no dispute that in the said truck, some persons were sitting and if some persons were sitting, in my opinion, that itself will be a violation of the permit conditions, because the permit was granted to the plaintiff to carry goods and in the definition of goods, which is mentioned above, living persons are specifically excluded. Therefore, in my opinion, carrying living persons in a vehicle which has a permit as a goods vehicle, will be a violation of a condition of the permit itself. Whether the persons were carried for hire or reward or not will be irrelevant to decide the responsibility of the Insurance company, for the payment as alleged by the plaintiff. It was submitted by the learned counsel for the appellant before me that the Insurance policy is a contract between the plaintiff and the defendant and it has prohibited only the persons to be earned in the truck for hire and reward and if the passengers who were occupying the truck were not carried for hire or reward, then the plaintiffs suit should have been decreed.

(6.) THE contract of insurance is based on mutual trust of the insurer and the insured. Deviation in the use of the vehicle should have been brought to the notice of the Insurance Company and after bringing the change of the use of the vehicle to the notice of the Insurance Company, if still the company had taken the risk to insure the vehicle, then the submission of the learned counsel would have had some force. Carrying passengers even without reward or hire by a goods vehicle itself is a breach of trust reposed by the insurance Company in the plaintiff. Therefore, the submission of the learned counsel for the appellant that the passengers who were sitting in the vehicle were not carried for hire or reward and it will not amount to a breach of insurance contract cannot be accepted.

(7.) THEREFORE, the result is that the Courts below have correctly dismissed the claim put forward by the plaintiff and I see no reason to interfere in the judgment and decreed passed by the Courts below.

(8.) AS such, the appeal fails and is dismissed with costs. Counsels fee rs. 100, if certified. Appeal dismissed.