C.K. Thakker, J.
1. This appeal is filed by the United India Insurance Co. Ltd. ('insurance company' for short) against an award passed by the Motor Accidents Claims Tribunal (Main), Ahmedabad (Rural) at Narol, on March 14, 1983, in M.A.C. Application No. 257 of 1980.
2. Short facts giving rise to the present appeal are as under:
The claimants-respondent Nos. 1 to 4 filed the above claim petition before the Claims Tribunal to recover an amount of Rs. 1,50,000/-, inter alia, stating that the deceased Purshottam was the husband of claimant No. 1, son of claimant No. 2 and father of claimant Nos. 3 and 4. He was serving as a conductor in Gujarat State Road Transport Corporation and was residing at village Chandrala. At the relevant time, he was attached to S.T. Depot, Dehgam. It was the case of the claimants that on March 2, 1980, deceased Purshottam was waiting at S.T. bus stop at village Chandrala to go to Dehgam for duty. He was waiting for a bus to come so that he could reach Dehgam. Meanwhile, opponent No. 2, Ramjibhai Nathubhai Chaudhari, who was driving a tractor No. GJM 9774 to which a trailer, No. GTE 9669 was attached, came there. Said Ramjibhai gave lift to Purshottam and Purshottam took seat in the trailer. Opponent No. 2 went at a short distance beyond village Chandrala. On the way, however, one S.T. bus was seen coming behind the tractor and thereupon Purshottam requested opponent No. 2 to stop the tractor so as to enable Purshottam to alight from the trailer. It was the case of the claimants that while Purshottam was still in the process of alighting from the trailer, opponent No. 2 suddenly drove the tractor with the result that Purshottam was thrown out of the trailer, sustained severe injuries and ultimately died.
According to the claimants, there was rashness and negligence on the part of the opponent No. 2 in driving the tractor, but for which the deceased would not have been thrown out of the trailer and would not have lost his life. The claimants were, thus, entitled to claim compensation from the opponent No. 2 (driver) who was rash and negligent in driving the vehicle. Similarly, the other opponents, i.e., the opponent Nos. 1A/1 to 1A/4 (owners) and opponent No. 3 (insurance company) were also vicariously liable to pay compensation.
Opponent No. 1, Laljibhai Joitabhai Patel, was joined as an owner of the tractor as well as the trailer but subsequently it was found that both the vehicles stood in the name of his father, Joitabhai Gobarbhai Patel and, hence, Joitabhai was ordered to be joined as opponent No. 1-A. It was, however, reported that Joitabhai expired in August, 1977 and, hence, his heirs and legal representatives were brought on record as opponent Nos. 1A/1 to 1A/4. Opponent No. 1A/4, Laljibhai Joitabhai, was party to the original petition also as opponent No. 1. The opponent No. 3 was United India Insurance Co. Ltd., appellant in the present appeal.
On the above averments, the claimants claimed Rs. 1,50,000/- as compensation from all the opponents jointly and severally.
3. Opponent Nos. 1 and 2 filed a written statement, Exh. 39 and contested the petition. It was contended that the facts stated in the claim application were not true. It was stated that opponent No. 2 had taken the tractor-trailer loaded with paddy bags to Chandrala and Kishorbhai Valabhai and Valabhai Ranchhodbhai, owners of some of paddy bags, were also in the trailer. On coming back near Chandrala, opponent No. 2 saw that deceased Purshottam was waiting at Chandrala S.T. bus stand to go to Dehgam. As Purshottam was known to opponent No. 2, at the instance of Purshottam, the tractor was stopped and Purshottam boarded the trailer to go to Chhala since the tractor was going via Chhala. When the tractor reached the limits of village Chhala, one S.T. bus was seen coming behind the tractor which was proceeding towards Dehgam on its way to Ahmedabad. Purshottam alighted from the trailer, while the tractor was still in motion. In doing so, Purshottam fell down on the road and sustained head injury due to which he subsequently died. It was the case of the opponent Nos. 1 and 2 that there was no negligence on the pail of opponent No. 2 in driving tractor or trailer. It was asserted that neither the tractor nor the trailer could be said to have been involved in the accident. The claim petition was time-barred so far as opponent Nos. 1A/1 to 1A/4 were concerned. It was also disputed that deceased was getting salary of Rs. 700/- per month and that the claimants were entitled to an amount of Rs. 1,50,000/- by way of compensation from the opponents.
4. Opponent No. 3, insurance company, vide its written statement, Exh. 16, had contended that there was no rashness or negligence on the pail of opponent No. 2 in driving the tractor or trailer. It was denied that opponent No. 2 had driven the tractor at a fast speed while the deceased was still in the process of alighting from the trailer. It was stated that the accident took place because of the negligence of the deceased himself in travelling in the tractor in which he should not have travelled. It was denied that the deceased was known to opponent No. 2. It was averred that the tractor was stationary when deceased fell down. Since the deceased was a TB patient the claimants could not claim an amount of Rs. 1,50,000 which was highly exorbitant. It was denied that the income of the deceased was Rs. 700 per month. Without prejudice to these contentions, it was stated that the tractor as well as trailer were having permit as 'public carrier' and risk of the passenger was not covered. It was contended that the deceased was a gratuitous passenger in the tractor and opponent No. 3 was not liable to indemnify the insured. It was also asserted that the policy of insurance in respect of tractor and trailer was issued covering third party risk only and the liability of the opponent No. 3 was limited to the extent provided in Section 95 of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act'). It was stated that the insured was Joitabhai Gobarbhai and since he died prior to the date of the accident and name of the new owner was not added or substituted in the policy nor the fact of the death was intimated to opponent No. 3, the contract of insurance came to an end. Finally, it was contended that the vehicle involved in the accident was insured under a public carrier's permit and was subject to the terms and conditions contained in the Schedule to the policy and more particularly under the column 'Limitation as to use'. As per those terms and conditions also, the policy did not cover use for the conveyance of passengers for hire and reward and since the vehicle was used for hire and reward, the insurance company was not liable to pay compensation to the claimants.
5. On the basis of the pleadings of the parties, the learned Tribunal framed necessary issues at Exh. 17 and after appreciating the evidence on record-oral as well as documentary-came to the conclusion that it was proved by the claimants that deceased Purshottam died as a result of rash and negligent driving of the tractor by opponent No. 2. The vehicle belonged to opponent No. 1 and was insured with the opponent No. 3, insurance company and hence, all the three were jointly and severally liable to pay compensation to the claimants. On the question of quantum, the Tribunal held that the claimants were entitled to Rs. 1,06,000 with costs and running interest at the rate of 6 per cent from the date of filing of the application till the date of realisation.
It is this award which is challenged by the insurance company in the present appeal.
6. Mr. K.H. Baxi, learned counsel for the appellant insurance company, contended that the insured died in or about August, 1977. Since the insurance company was not intimated about the death of the insured, it cannot be held liable and the award passed by the Tribunal holding the insurance company liable requires to be quashed. He further submitted that deceased Purshottam was a gratuitous passenger and not the passenger for hire and reward. Hence, as per the terms of policy, the insurance company is not liable. In the alternative, he contended that even if it is held that the deceased was a third party in trailer and the insurance company was liable, such liability must be a limited one. According to Mr. Baxi, the distinction sought to be made between the tractor and the trailer by the Tribunal is artificial and illegal. The Tribunal has committed an error of law in holding that the deceased was a third party since he was in the trailer and, therefore, the claimants were entitled to get compensation from the insurance company. The counsel submitted that award passed against the insurance company is contrary to law, against the evidence on record, as well as finding recorded by the Tribunal itself and the appeal deserves to be allowed so far as the appellant insurance company is concerned.
7. Mr. V.D. Pandya, whose appearance is shown for respondent Nos. 1 to 4, original claimants, has remained absent all throughout the hearing of the appeal. Mr. P.M. Thakker appeared for respondent Nos. 5, 7 and 11, son of the owner as well as for the driver, and supported the award passed by the Tribunal. Respondent No. 6, Joitabhai, had expired in 1977 as observed by the Tribunal. Respondent Nos. 8 to 10, though served, have not appeared.
8. Mr. P.M. Thakker submitted that after appreciating the evidence on record, the Tribunal rightly concluded that there was no suppression of fact by Laljibhai, the son of the owner Joitabhai of the vehicle, in not intimating the insurance company as alleged by the company. According to him, Laljibhai had informed Jitubhai about the death of Joitabhai; an affidavit was also filed and the policy was renewed from time to time. Regarding distinction between tractor and trailer, the counsel submitted that the distinction was rightly made by the Tribunal. It was argued that trailer was independent of tractor and its registration was also separate. So far as trailer was concerned, the argument proceeded, deceased Purshottam can be said to be a third party. If it were so, according to the counsel, the insurance company cannot be exonerated from payment of compensation. The learned counsel also argued that since the deceased was not a passenger but a third party, the liability of the insurance company could not be said to be limited and the claimants were entitled to get amount of award jointly and severally from all the opponents including the appellant.
9. Having considered the arguments of the learned counsel for the parties and having gone through the record of the case, we are of the opinion that the present appeal filed by the insurance company requires to be allowed. In our opinion, the Tribunal has rightly recorded a finding of fact that Purshottam was a gratuitous passenger in the trailer. After considering the evidence of Ramjibhai driver as well as other witnesses, the Tribunal observed that opponent No. 1, Laljibhai, was also present in the tractor. Though Laljibhai has denied this fact and it was his specific case that he was not in the trailer, his police statement has been brought on record. The Investigating Officer, Himatgiri Gosai, was examined and police statement of Laljibhai was duly proved through his evidence. Similarly, the statement was also put to Laljibhai in his cross-examination. Considering the evidence of Investigating Officer as well as of witness Laljibhai, the Tribunal recorded a finding that Laljibhai was very much present in the trailer when Purshottam was taken by Ramjibhai in me trailer. The Tribunal, in our opinion, is also right in observing that in view of presence of Laljibhai in the trailer, Ramjibhai could not have demanded any amount from Purshottam for hire and reward. We are, therefore, of the view that the finding recorded by the Tribunal that Purshottam was a gratuitous passenger is well founded and must be confirmed. It, therefore, cannot be said that Purshottam was a passenger for hire and reward in the toiler.
10. So far as liability of the insurance company is concerned, our attention was invited by Mr. Baxi, learned counsel for the insurance company, to policy, Exh. 112, as well as permit, Exh. 135. Looking to Exh. 112, it is clear that both the tractor and the trailer were registered as having registration Nos. GJM 9774 and GTE 9669 respectively. As to limitation of the use, it was described as 'public carrier'. In permit, Exh. 135, in form No. P. PUC issued under Rule 81 of the Bombay Motor Vehicles Rules, 1959, in col. 7 it was stated as under:
Nature of the goods to be carried: to carry out goods on hire.
A rubber stamp was also put in Exh. 135 wherein it was stated that it was subject to the condition as per attached list and the conditions laid down in Section 59 of the Act. The conditions annexed with permit, Exh. 135, inter alia, provide that the vehicle shall be used only in the manner specified in the permit. Condition Nos. 12 and 19 are relevant and they read as under:
(12) Number of persons when carried shall not exceed seven as provided in Rule 118 of the Bombay Motor Vehicles Rules, 1959. XXX XXX XXX
(19) That the vehicle shall not be used or caused to be used in any manner not authorised by permit.
The term 'public carrier' is defined in Section 2(23) as "an owner of a transport vehicle who transports or undertakes to transport goods, or any class of goods, for another person at any time and in any public place for hire or reward, whether in pursuance of the terms of a contract or agreement or otherwise and includes any person, body, association or company engaged in the business of carrying the goods of persons associated with that person, body, association or company for the purpose of having their goods transported." Transport vehicle' is defined in Section 2(33) as "public service vehicle or a goods vehicle." 'Public service vehicle' is defined "as any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab, contract carriage and stage carriage" [Section 2(25)]. Under Section 2(8), '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." Rule 118 of the Bombay Motor Vehicles Rules, 1959, enumerates certain situations in which passengers can be carried in goods vehicle. Sub-rule (1), however, clarifies that subject to the provisions of the rule (i.e., Rule 118), no person shall be carried in a goods vehicle. Looking to the above provision, it is abundantly clear that since the tractor and trailer were registered as 'public carrier', no passengers could have been carried in the said vehicles when in the permit itself it was specifically mentioned that it was subject to the provisions of the Act and Rules. Transport vehicle' is defined as "public service vehicle or a goods vehicle." It is neither the case of the claimants nor of the owner that the tractor or trailer was a 'public service vehicle', hence it was a 'goods vehicle' and in view of the permit and the provisions of Rule 118 of the Bombay Motor Vehicles Rules, 1959, no passenger for hire and reward could be carried in tractor or trailer. In these circumstances, the insurance company could not have been held liable. The point is squarely covered by a judgment of the Division Bench of this court in Bhoi Vanaji Dhulaji v. Patel Shivabhai Kashibhai 1981 ACJ 107 (Gujarat).
11. The next question which remains to be considered is as to whether tractor and trailer can be treated as separate vehicles and that by driving the tractor rashly and negligently, the opponents could be held liable. The Tribunal on that aspect considered the evidence adduced by the parties and observed that the permit, Exh. 135, prohibited carrying any passenger for hire and reward in the trailer. The Tribunal, however, upheld the contention of the claimants that the accident occurred as a result of the negligent use of the tractor and not of the trailer. After considering clauses (a), (b) and (c) of Section 95(2) of the Act, the Tribunal held that the trailer could not be said to be a goods vehicle and, therefore, would not fall under Clause (a) of Section 95(2) of the Act. Similarly, it was not a vehicle in which passengers could be carried for hire and reward and, hence, was not covered by Clause (b) of Section 95(2) of the Act. Since it did not fall either under Clause (a) or under Clause (b) of Section 95(2), it must fall in the residual category of Clause (c) and in that case, the insurance company could not be exonerated from its liability and was bound to pay compensation and the liability was to the extent of an amount of liability incurred. Thus, the insurance company was liable in its entirety.
As stated by us hereinabove, the approach of the Tribunal is not in accordance with law. In our considered view, the provisions of Section 95(2)(c) cannot be attracted. From clauses (8), (25) and (33) of Section 2 of the Act, it is clear that the tractor-trailer in the instant case cannot be said to be a 'vehicle of any other class' as held by the Tribunal. The trailer was a 'public carrier' which is clear from the policy, Exh. 112 and permit, Exh. 135. It could not have carried passengers in view of the provisions of the Act as well as of the Bombay Motor Vehicles Rules, 1959, as also the terms and conditions of permit. Hence, in our view, the Tribunal was not right in holding insurance company liable on that ground. Since we have affirmed the finding recorded by the Tribunal that Purshottam was a gratuitous passenger in trailer and since the vehicle was a public carrier and could not have carried passenger for hire and reward, as held by the Full Bench of this court in Ambaben v. Usmanbhai Amirmiya Sheikh 1979 ACJ 292 (Gujarat), the insurance company cannot be held liable for the payment of compensation to the claimants.
12. In our opinion, the Tribunal has committed an error of law in treating the tractor and trailer as different and separate vehicles and in holding the insurance company liable by observing that the driver was rash and negligent in driving the tractor and since the deceased was travelling in a trailer, he was a third party qua tractor and, hence, along with the owner and driver, the insurance company was also vicariously liable. In this connection, Mr. Baxi drew our attention to para 34 of the judgment, wherein the Tribunal has observed that the tractor portion was a separate motor vehicle and there was nothing to show that a particular portion was a goods vehicle. The Tribunal then observed: "As already stated by me, so far as tractor portion is concerned, the deceased was clearly a third party and not a passenger, because he was not being carried on the tractor-portion but admittedly in the trailer-portion." Thus, drawing the distinction between trailer and the tractor and holding the deceased a 'totally third party' vis-a-vis tractor, the Tribunal held the appellant insurance company also liable. Mr. Baxi relied upon the ratio laid down by this court in the case of Parsottambhai Kanbhai v. Panchiben 1977 ACJ 441 (Gujarat), to show that there was no distinction between lang1033a tractor and trailer so far as liability of tortfeasors is concerned. In that case, the collision between motor cycle and trailer attached to the tractor took place. The right comer of the trailer dashed with the rider of the motor cycle who was coming from the opposite direction. The question before this court was whether the tractor driver was guilty of negligence. It was contended that the accident took place on account of rash and negligent driving of the tractor and the trailer being not a prime mover, not having locomotion, the insurance company was not liable. The contention was negatived by this court by observing that if there was no trailer possibly the tractor would have moved away and there would not have been an accident. The court then observed that the driver of the tractor was ipso facto driver of the trailer. Mr. Baxi is right in submitting that in the instant case also, the ratio laid down in Parsottambhai's case (supra) applies and the error committed by the Tribunal requires to be corrected by this court. Our attention was also invited by the learned counsel on the decision of the Division Bench of this court in Pravinchandra Jivraj Mehta v. Lalbhai Melabhai Vasava 1982 ACJ (Supp) 531 (Gujarat). In Pravinchandra's case (supra), the same principle was applied by this court by observing that when a tractor as well as trailer were involved and the accidental injuries have been caused in public place to third party, the claimant was entitled to compensation. The insurer was bound to satisfy the award passed in favour of the claimant. The court also held that it could not be argued that though the trailer was attached to the tractor and only tractor was driven by driver, the accident could be said to have been caused by tractor and not by trailer which was accompanying it when both the tractor as well as trailer jointly dashed against coming Ambassador car which was occupied by the insured claimant at the relevant time. The insurance company, therefore, could not urge with any emphasis that it was not liable. The court concluded that it was the tractor which put the trailer in motion and it was as a result of the negligent driving of the tractor by its driver that the accompanying trailer got dashed with the Ambassador car. Consequently, it could not be said that only trailer was involved in the accident and not the tractor. In the instant case also two separate registration numbers have been given to tractor and to trailer and by combined policy both of them have been insured with the insurance company. In our opinion, therefore, the Tribunal was not right in making distinction between trailer and tractor and by holding insurance company liable on the basis that the deceased was a third party vis-a-vis tractor.
13. In view of the above findings, our conclusions are that the vehicle in question was a public carrier and it could not have carried passengers for hire and reward. Purshottam was a gratuitous passenger in the said vehicle, who could not have claimed any compensation from the insurance company and since no distinction could be made between the tractor and the trailer, Purshottam could not be treated as third party. The resultant effect of the above discussion is that the Tribunal has committed an error of law in holding the insurance company liable and by directing it to pay compensation to the claimants. The award passed by the Tribunal, therefore, requires to be quashed and set aside.
14. In view of our above discussion, it is not strictly necessary to refer to the third contention of Mr. Baxi. However, since the arguments have been advanced by both the sides, we think it fit to deal with the said contention also. It is an admitted fact that Joitabhai was the owner of tractor as well as trailer. It also appears from the record that original policy was in the name of Joitabhai. It is an admitted fact that till the date of the accident, i.e., March 2, 1980, the policy continued to remain in the name of Joitabhai. Joitabhai died in or about August, 1977. According to Laljibhai, he had intimated Jitubhai Vakil alias Jitendra Virsinh Chaudhari, Exh. 113, about the death of his father Joitabhai. He also stated that Jitubhai asked him to submit certain papers so as to enable Jitubhai to do needful in the matter. According to Laljibhai, an affidavit was sworn by him in Dehgam court and Jitubhai told Laljibhai that policy will be transferred in the name of Laljibhai's mother. Laljibhai, however, admits in cross-examination that he was given paper attached to the R.T.O. book and the receipt of payment of premium paid by him. No such R.T.O. book or receipt has been produced by Laljibhai. After the accident, when Laljibhai approached Jitubhai, signature of Laljibhai was taken on two papers, Exh. 69, accident report and Exh. 70, claim form. Jitubhai asked Laljibhai as to how the proceedings were initiated against Laljibhai though the owner of tractor and trailer was Joitabhai. Laljibhai informed Jitubhai about the death of his father and yet Jitubhai asked Laljibhai to sign Exhs. 69 and 70 on behalf of Joitabhai. Relying on the above deposition of Laljibhai as also of Jitubhai, a submission was made on behalf of respondent Nos. 5 to 7 that Jitubhai was aware of the fact of the death of Joitabhai. It was also submitted that there is no reason to disbelieve Laljibhai when he stated that he informed Jitubhai about the death of his father and had also filed affidavit in Dehgam court, though such affidavit is not forthcoming on record. When neither the affidavit said to have been sworn by him in Dehgam court, nor any other material is produced by Laljibhai, it cannot be said that the insurance company was aware of the death of Joitabhai before the date of the accident. The matter, however, does not end there. There is evidence of Atul Pathak, Exh. 98. At the relevant time, he was working as Sr. Assistant. In his deposition, he has stated that no intimation was ever received by the insurance company from Laljibhai about the death of his father Joitabhai. He also stated that the said statement was made by him after perusing the necessary files which he had brought with him. He further stated that he came to know about the death of Joitabhai before two months of his deposition only when the advocate of the insurance company informed the company about that fact. Similarly, Haresh M. Chhatrapati, Exh. 107, Sr. Assistant of the insurance company, has also stated that the insurance company had not received any application for transfer or any intimation of the death of Joitabhai. He also stated that if an insured dies during the period covered by the policy and his legal representative wants the policy to be transferred to his name, the company insists on an application being given by such person and effects transfer thereafter. Nothing fruitful came out of the cross-examination of the said witness by the claimants. In view of absence of any documentary evidence and further in view of the depositions of two responsible officers of the insurance company it cannot be said that the insurance company was aware about the death of Joitabhai and in spite of such information, the policy came to be renewed in the name of Joitabhai. It is, no doubt, true that Jitubhai admitted in his deposition, Exh. 113, that even after he came to know about the fact of death of Joitabhai, he took signatures of Laljibhai on Exhs. 69 and 70, accident report and the claim form. It is also true that he has further admitted that it had not struck to him then that it was wrong to get claim form in the name of deceased and to obtain somebody else's signature on it on his behalf. But when there is no cogent evidence to show that the insurance company was intimated about the death of Joitabhai and policy came to be renewed even after the death of Joitabhai, in our opinion, it cannot be successfully argued that the insurance company was liable on the ground that the policy came to be continued and that merely a ministerial act of transfer of policy was not performed. From the evidence of Laljibhai and Jitubhai, it can at the most be said that Laljibhai had informed Jitubhai about the death of Joitabhai and Jitubhai was aware of that fact. The approach of the Tribunal was that there was no suppression of material fact by Laljibhai. In our opinion, however, the question is not of suppression of material fact. The question is of liability of the insurance company and when from the evidence on record, it cannot be established that insurance company was aware of the death of Joitabhai, the insurance company cannot be held liable simply because the policy continued in the name of dead person. Therefore, on that ground also, the insurance company is not liable and the claimants are not entitled to get compensation from the insurance company. The act of renewal of policy in the name of Joitabhai cannot come in the way of company in taking legal contention that the contract came to an end and was no longer enforceable at law.
15. In view of the above discussion, it follows that the insurance company requires to be exonerated from its liability from payment of compensation to the claimants. Since no arguments were advanced on quantum of compensation, we do not express any opinion on that aspect.
In the result, the appeal is allowed. The order passed by the Claims Tribunal holding insurance company liable is quashed and set aside. On the facts and circumstances of the case, there will be no order as to costs.