ORIENTAL FIRE AND GENERAL INSURANCE CO. LTD. Vs. HUSSEINBHAI ABDULBHAI SHAIKH
LAWS(GJH)-1983-6-13
HIGH COURT OF GUJARAT
Decided on June 26,1983

ORIENTAL FIRE AND GENERAL INSURANCE CO. LTD. Appellant
VERSUS
Husseinbhai Abdulbhai Shaikh Respondents

JUDGEMENT

BHATT, J. - (1.) THIS group of appeals is preferred by common opponent No 3, the Oriental Fire and General Insurance Co Ltd. As many as 17 claim applications had come to be filed before the Motor Accidents Claims Tribunal, Kaira at Nadiad, and they were tried jointly because all of them had arisen out of the same accident that had taken place on February 15, 1976, in the early hours of the morning. The numbers of the claim applications with their respective numbers of the appeals are to be found at annexure 'A' to this judgment. On that day, which was a full moon day of that month, many persons were stranded at the Mehmedabad S T bus stand. They were all bound for Dakore, a holy shrine in Gujarat, for the purpose of having glimpses of the deity there. Judicial notice is to be taken of the fact that there are numerous devotees in Gujarat, who under a vow, take a journey to that holy place for darshan. Those 17 persons were given a lift in truck No GTG 1525 driven by opponent No 1 in the course of his employment with opponent No 2. Unfortunately, after the truck travelled some distance, it went amuck and fell into a ditch nearby. The result was that six passengers had died and the rest were injured. Six claim petitions had come to be made before the Tribunal by the heirs of the deceased victims to claims the amounts of compensation and so were the applications by the injured persons.
(2.) THE learned Tribunal raised various issues in all those matters and we find those issues reproduced application -wise in paragraph 5 of the Tribunal's judgment. The Tribunal ultimately held that all these people who suffered were passengers for hire or reward, that they were offered lift by the driver and the conductor of the truck, who were working at the relevant time in the course of their employment with opponent No 2 and that, therefore, the driver, the owner and the insurance company with which the vehicle was insured, were liable to make good various amounts of compensation. Being aggrieved by the joint and several liability imposed on the insurance company, it has filed the present appeals before us. It was firstly contended on behalf of the insurance company that these claimants were gratuitous passengers and so as per the settled law, the insurance company was not liable. There is no controversy before us that if these claimants or persons who travelled were gratuitous passengers, the insurance company would not be liable. Two witnesses, Vidyaben, exhibit 83 and Kapilaben, exhibit 33, were examined in this case. Though in all the petitions it was alleged that the passengers were charged the fare equivalent to the fare charged by the S T Bus service, for some queer reasons these two witnesses tried to assert that they were offered free lift whereas their cross -examiners tried to prove that the lift was not gratuitous, but it was a paid one. The driver of the vehicle, however, denied his having accepted any charges. This was a fantastic theory put forward by him. He stated that the passengers, who were stranded at the Mehmedabad bus stop, had forcibly entered into the body of the truck and had made him drive the truck under the threat of beating him. The Tribunal did not believed this part of the story and we also, on our part, would not attach any credence to it. The Tribunal ultimately on this point held as follows : 'It also appears that he must have charged some fare from the persons who had boarded the buses were not available, the injured applicants and the deceased might have paid the same.
(3.) LEARNED counsel for the insurance company seriously called in question this particular finding and a good deal of reference to the evidence and the pleadings were required to be had on this point but we ultimately found that the insurance company itself had accepted this finding and grounds Nos. 8 and 9 in the memos of appeal clearly show that the insurance company wanted this court to proceed on the footing that the passengers had paid charges equivalent to the State transport bus charges. We, in the final analysis, did not permit the appellant to make out a different case at variance with the specific ground put forward in the memos of the appeals. After all, no defence could be taken by the insurance company on this point. We also did not permit learned counsel for the appellant to urge that the claimants in Claim Applications Nos. 218, 219 and 220 of 1976 from which First Appeals Nos. 865, 866 of 1977 had arisen, were or were not the employees of the insured because the memos proceeded on the clear admission of they being passengers who had paid charges.;


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