S.B. MAJMUDAR

(1) This appeal under sec. 110-D of the Motor Vehicles Act 1939 raises a short question regarding liability of the insurance company the insurer of a motor truck to satisfy the award of damages made payable by the Motor Accident Claims Tribunal Rajkot in favour of the claimant whose mother died out of the motor accident caused by the motor-truck which was insured against the third party risk by the appellant-insurance company. The facts leading to the present appeal lie in a narrow compass and they deserve to be stated at this juncture.

(2) At 2 p.m. in the noon of 28/04/1975 an accident was caused by a goods-truck bearing No. GTE 8747 in the compound of Western India Tiles Company Makansar (Morvi). The said truck while inside the compound of the tiles factory and being taken in reverse ran over a manual labourer presumably an employee of the tiles factory who was engaged in loading tiles in the said truck. Deceased Bai Jivi was doing manual work in the said factory and she died in harness on account of the accidental injuries caused to her by the offending truck which came in reverse without blowing horn and ran over the unfortunate victim. She succumbed to her injuries in a few hours. Her son filed M.A.C. Application No 93 of 1975 before the Motor Accident Claim Tribunal at Rajkot for being awarded a total of Rs. 9 999 on account of the accidental injuries caused to his mother who lost her life on account of those injuries. In the said claim petition the driver of the truck was joined as opponent No. 1 while the owner of the truck was joined as opponent No. 2. The insurance company which had insured the offending truck was joined as opponent No. 3. The Claims Tribunal held that the tort-feasor was liable to make good the entire claim of Rs. 9.999 and on that basis the Tribunal held the owner of the truck to be vicariously liable for the tortious act of his driver who was found to be both rash and negligent when he drove the truck in reverse without taking proper precautions. So far as the claim against the insurance company was concerned it was found by the Tribunal that under sec. II(i) of the insurance policy Ex. 41 the company had undertaken liability to pay compensation for accidental injuries caused to third parties by use of the insured vehicle. As per the said provision found in the insurance policy the insurance company would be liable to satisfy the claim to the full extent even though the accident in question was caused by the offending truck not in a public place.

(3) As a result of the aforesaid finding the Tribunal made the insurance company-opponent No. 3 liable to satisfy the awarded amount with interest and costs.

(4) The insurance company has preferred this appeal challenging that part of the award of the Tribunal by which it is made liable to answer. the claim of the claimant

(5) Mr. A. H. Mehta learned Advocate appearing for the insurance company submitted that as admittedly the accident was caused within the private compound of the tiles factory no statutory liability to cover the risk arising out of such accident could be foisted upon that insurance company and that there was nothing in the insurance policy to suggest that the insurance company had taken any wider coverage on the charge of extra premium even going beyond the limits stated by the statutory provision of the Motor Vehicles Act 1939 requiring the insurance company to have compulsory coverage of specified risks caused to third parties. In short Mr. Mehta submitted that neither there was any contractual obli- gation nor any statutory obligation on the part of the insurance company to satisfy the award in the present case.

(6) Mr. H. K. Rathod learned Advocate for respondent No. 1 claimant and Mr. S. R. Divetia learned Advocate for respondent No. 3 the owner of the truck on the other hand submitted that even though the accident had occurred within the compound of the tiles factory. on proper construction of the relevant conditions incorporated in the insurance policy Ex. 41 the insurance company can be said to have covered the wider risk as per the said terms and consequently even though the statutory provisions may not cover such a case the extended liability of the insurance company under the clear terms of the insurance policy can certainly be pressed in service by the concerned parties against the insurance company In short their summission was that the Tribunal was quite justified in directing the insurance company to satisfy the entire award.

(7) In order to appreciate the rival contentions of the parties it will be necessary to notice relevant statutory provisions. If the relevant statutory provisions foist upon the insurance company an obligation to cover the risk arising out of the accident caused in the present case the matter would end at that stage only. But if it is found that the statutory provisions do not cover such risk and do not enjoin upon the insurance company to have compulsory coverage in the contingencies like the present one then in that case effort will have to be made to find out from the terms of the insurance policy as to whether by any contract between the insured and insurance company any wider risk is covered.

(8) So far as statutory provisions are concerned sec. 95 (1) of the Act provides for both requirements of the policy and limits of the liability. Relevant provisions of sec. 95 (1) read as under :-

(1) In order to comply with the requirements of this Chapter a policy of insurance must be a policy which (a) x x x (b) x x x (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) x x x (iii) x x x Explanation For the removal of doubts it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-sec. (1) a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits namely: (a) Where the vehicle is a goods vehicle a limit of fifty thousand rupees in all including the liabilities if any arising under the Workmens Compensation Act 1923 in respect of the death of or bodily injury to employees other than the driver not exceeding six in number being carried in the vehicle.

(b) x x x. Sec. 96 (1) provides for duty of insurers to satisfy judgments against persons insured in respect of third party risks. Relevant provisions thereof read as under :

96 If after a certificate of insurance has been issued under sub-sec. (4) of sec. 95 in favour of the person by whom a policy has been effected judgment in respect of any such liability as is required to be covered by a policy under clause (b) of sub-sec. (1) of sec. 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy then notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy the insurer shall subject to the provisions of this section pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder as if he were the judgment-debtor in respect of the liability together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

A combined reading of sec. 95 (1) (b) (i) and sec. 96 (1) clearly shows that the statutory provisions enjoin the insurance company to compulsorily cover the risks of accident caused to third parties out of the user of the motor vehicle in a public place subject of course to overall limits of liability in respect of any one accident as provided by sec. 95 (2). It is therefore apparent that before the insurance company can be satisfactorily made liable to make good the claim of parties put forward on account of the accidental injuries caused to third parties it has got to be shown that death or bodily injuries to any person of third party was caused by or arising out of the use of the vehicle in a public place. If the death or bodily injury to third party is caused by use of the vehicle at a place which was not a public place statutory requirements of sec. 95 (i) (b) (1) to cover such risk would not arise at all. Explanation to sec. 95 (1) is therefore instructive on this aspect of the matter. By way of removal of doubts it has been expressly made clear by the legislature that even though persons injured fatally or otherwise by the offending vehicle may not be in public place at the time the accidental injuries were caused to hem if it is shown that the act or omission which led to the accident occurred in a public place and its result was visited upon the victim at a place other than a public place liability to cover such risk would still be fastened on the insurance company which had to insure compulsorily a motor vehicle against such type of contingencies The explanation obviously is expected to cover such types of cases in which inure vehicle may be driven on a public road in a rash and negligent manner but its effect on the innocent victims may be visited upon them while they themselves may not be in a public place. For example if a motor truck is driven rashly and negligently on a public road and if the driver recklessly drives the vehicle in such a manner that he loses control over the steering as a result he leaves the road and enters private property by the side of the road say a shop and kills any one who may be sitting in the shop then in such a case even though injuries can be said to have been caused to the victim at a place which was not a public place as the origin of the injury or crime or root cause thereof occurred on account of the wrongful act or omission on the part of the driver of the insured truck on a public road the insurance company would remain liable to compulsorily cover such third party risk. Hence it is clear that before any insurance company can be satisfactorily made liable to answer claim for damages arising out of the accidental injuries caused to a third party on account of the use of the insured vehicle it must be shown that the vehicle was driven in a rash of negligent manner in a public place or the root cause of the accident must have originated during the time when the vehicle was used in a public place and if that fact is established the further question whether such rash or negligent act may have injured innocent third party at a place which may not be a public place would not be strictly relevant for the purpose of deciding the statutory liability of the insurance company for covering such risk of accident. It is equally-clear that if the accident is caused by the insured vehicle in a public place and victim is also found to have been injured in a public place there would arise no question of any further controversy regarding statutory liability of the insurance company but the minimum requirement of statutory coverage of third party risk as envisaged by sec. 95 (1) is that the offending vehicle must have been used in a public place when it set in motion pernicious consequences out of such use which might injure fatally or otherwise innocent third parties wherever they may be at the time they are visited with such consequence.

(9) While considering the effect of the statutory provisions of sec. 95(1) read with sec. 96(1) it is also necessary to keep in view the definition of the words public place as found in sec. 2 (24). The said definition reads as under:

public place means a road street. way or other place whether a thorough fare or not which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage carriage.

(10) It is therefore clear that before any place can be considered to be a public place it must be proved to be one where public will have a right of access. It is therefore obvious that private premises or compound of private factories where members of public can enter only upon express or implied permission of private owners of those premises cannot meet with the statutory requirements of sec. 2(24). In the present case it is an admitted position that the site of the accident was within the compound of Western India Tiles factory. The claimant son of the deceased labourer Bai Jivi in his deposition at Ex. 35 stated on oath that at the time of the accident his mother was working as a manual labourer in Western India Tiles factory and she was working in the factory premises and at that time she was fatally injured by the offending truck.

(11) Claimants witness No 2 Nanji Raja Ex. 36 also in terms admitted that at the time when deceased Bai Jivi alongwith the witness was engaged in loading the truck within the factory premises Bai Jivi was run over by the offending truck when its driver came in reverse without sounding horn abruptly came back and crushed Bai Jivi under the wheels of the said truck. The Tribunal in para 6 of its judgment has also noted this admitted position while discussing issues Nos. 2 and 3. It has been in terms found by the Tribunal that the accident had taken place in a private place. Once that finding is reached the conclusion is inevitable that under the settings of sec. 95 read with section 96 and in the light of the definition clause 2(24) it must be held that the insurance company was not liable compulsorily to cover the risk of injury caused to a third party arising out of use of the vehicle in such a private place. Mr. Mehta for the insurance company therefore is justified in his submission that under the statutory requirements of the Act the insurance company was not liable to cover such risk and hence the insurance company could not have been statutorily called upon under sec. 96(1) to satisfy the claim for compensation arising out of the fatal injury caused by the offending truck to a third party when the vehicle was not used in any public place. The act or omission on the part of the driver of the truck had also not taken place in any public place. It must therefore be held that the statutory coverage of any liability of the insured on the facts of the present case was not available against the- insurance company. In this connection I may usefully refer to two judgments on the point. In the case of Rajammal v. Associated Transport Co. and Another 1970 Accidents Claims Journal 44 [LQ/MadHC/1968/177] a learned Single Judge of the Madras High Court had to consider this very question. While analysing the provisions of secs. 95(1)(b) and 96(2) in the light of sec. 2(24) of the Act it was observed that when the accident is caused in a private property the insurance company would not be liable statutorlly to cover the risk of injuries caused to third parties by use of insured vehicle in such private place. It was observed that it is clear from the definition that the criterion is whether the public have a right of access to the place; and it will not be a public place merely if as a matter of fact the public have access. The learned Judge also repelled the contention on behalf of the claimant in that case that such defence was not open to the insurance company under sec. 96(2) of the Act. In that connection it was observed as under:

The argument has no force because before sec. 96(2) comes into play the liability of the insurance company must arise under sec. 95(1)(b); and if under sec. 95(1)(b) they are D9t liable on the ground that the vehicle was not used in a public place as defined in the Act section 16(2) does not come into play at ail. Otherwise it would mean that sec. 95(1)(h) making a reference to public place would be a dead letter. It is significant to note that sec. 96 (1) itself speaks of the policy required to be issued under clause (b) of sub-sec (1) of sec 95

I may also refer to a judgment of the Orissa High Court in the case of Life Insurance Corporation of India v. Karthyani and Others 1915 Accidents Claims Journal 226 The aforesaid Madras decision was followed by the learned Single Judge of the Orissa High Court in the above L.I.C. case (supra). In the case before the Orissa High Court the accident had taken place within the Hindustan Steel factory. Public had no right of access to the premises. On the aforesaid facts it was held that the insurance company cannot be held liable because the accident had taken place in private premises. Upholding the contention on behalf of the insurance company learned Judge S. Acharya J. in the aforesaid decision observed:

As per sec. 95(1)(b)(i) of the Act insurer is liable to pay compensation upto the extent specified in sub-sec. (2) of sec. 95 for the death or bodily injury to any person or damage to any property of a third party if the same is caused by or arise out of the use of she insured vehicle in a public place.

Having noted the definition of public place in sec. 2(24) the learned Judge further observed:

The dictionary meaning of the word-access in the said definition is admittance admission. Therefore a place to which the public have a right of access would mean the place where members of the public have admission as of right that is where they can go with out any hindrance or without being required to take any permission from any body. If members of the public do not as of right have access to a particular place that place cannot be said to be a public place as per the said definition.

It was further observed that it is well known and judicial notice can be taken of the fact that members of the public cannot go as of right inside the factory premises. It was therefore held that the insurance company would not be statutorily liable to answer the claim of the claimant when the accident had not been caused in a public place. I fully concur with the reasoning of the learned Judges in the aforesaid two decisions.