K.KANNAN, J. - (1.) ALL the cases are connected and the appeal is by the owner of the vehicle who had been denied the right of indemnity from the insurer. The vehicle which was involved in the accident was a private car of Tata Sumo make and the policy cover provided for a package insurance that covered the risk to passengers in a vehicle. There was a specific prohibition against user of the vehicle for hire.
(2.) AT the trial, the witnesses had been questioned with reference to how they were travelling in the vehicle and PW1, PW3 and PW13 had also categorically stated that the fare had been settled and that they had to pay the fare at the time of getting down from the vehicle. As regards the claims arising from the death, the character of those persons had not been specifically set down. Learned counsel appearing for the owner-appellant reads to me the evidence of some of the witnesses who had said that they had not paid the fare, but they had not known the owner or the driver. Significantly, they were not prepared to admit whether other persons, some of whom were relatives, had paid the fare or not. Learned counsel would contend that when the insurance company was denying the fact of liability, it could do so only under any of the grounds permitted under the terms of the policy. If the insurance company was, therefore, contending that there had been a violation of terms, the burden was on the insurer to prove that there had been a violation by the payment of hire charges. In my view, the Tribunal has adopted a correct approach by relying on the evidence of three of the witnesses who had categorically admitted that fare was `30/- per person, but the amount, however, had not been paid and it could have been paid while getting down from the van. The admission of an adversary is the strongest piece of evidence unless, the admission itself is explained away as attended with vitiating circumstances or an admission which would be by some ignorance or a clear mis-statement of fact. The issue also cannot turn on the fact that the amount had not been actually tendered. A hire involves the user of the vehicle for consideration and consideration as defined under Section 2(d) of the Contract Act includes not merely a detriment already sufferred, but even a promise to pay in future would constitute a detriment to support a contract of hire. I will not again take that some of the witnesses had not admitted that hire charges had been offered to be given. If they had boarded the vehicle without any undertaking to pay hire, then it must be explained that they had by some way known the driver or the owner and that they were gratuitous passengers. Not one witness was prepared to make such a statement. I have already pointed out that they were at best evasive in the replies that they did not know if anyone else had undertaken to pay hire charges. Obviously, some of the witnesses were keen to secure enforceable awards against the insurance company and if the admission has come through other witnesses, I would take them as substantial for a Tribunal to gather that it was the truth that came through some of these witnesses. As regards the statements of PW1, PW3 and PW13 who were themselves parties, they shall constitute admissions. As regards the other persons, though they may not be characterized as admissions they would go as statements that have rendered unraveling of truth for the Tribunal.
(3.) THE burden which is cast on the insurer in a situation where a vehicle is driven for hire or reward would be invariably a matter of inference only. Where there is an admission by the owner himself that would conclude the issue. If the owner was not even prepared to step into the witness box to deny that he had no knowledge of any admission by his driver to secure a hire or he had specifically prohibited the driver from collecting the hire, I would hold that the best of evidence which was possible of being placed by the owner himself was not placed. I would draw, therefore, an adverse inference by the non-examination of the owner of the vehicle, coupled with the fact, that there were three witnesses at least who spoke about the fact that they were in the vehicle undertaking to pay the hire. THE Tribunal has made a proper inference that vehicle had been used for hire and therefore, there had been a violation of terms of policy.;