Andhra HC (Pre-Telangana)
New India Assurance Company Ltd., ... vs Palla Peda Polamma And Others on 10 February, 2000
Equivalent citations: II(2000)ACC183, 2000(2)ALD650, 2000(3)ALT332, 2000 A I H C 2372, (2000) 2 TAC 403, (2000) 2 ANDHLD 650, (2000) 3 ANDH LT 332, (2000) 2 ACC 183, (2000) 2 ANDHWR 19
JUDGMENT
1. The New India Assurance Company Limited, Visakhapatnam filed this civil miscellaneous appeal against the order of the District Judge and Motor Accidents Claims Tribunal, Visakhapatnam dated 5-7-1989 in MOPNo.131 of 1986.
2. The appellant is the 3rd, respondent in the said OP. Respondents 1 to 5 are the claimants in the OP. The 6th respondent herein is the driver and the 7th respondent is the owner of the offending vehicle. The 6th respondent is given up and as far as the 7th respondent is concerned, proof of paper publication has been filed, which is sufficient proof of service of notice, but, no one appeared on behalf of the 7th respondent.
3. Sri Kota Subba Rao, the learned Counsel for the appellant-Insurance Company contended that the appellant is not disputing the occurrence of the accident that took place due to the rash and negligent driving of the lorry bearing No.AAV 636 belonging to the 7th respondent and it is also not disputing the total quantum of compensation arrived at Rs.80,600/- awarded by the Tribunal, but only contended that the limits of the liability to public risk is only limited to Rs.50,000/- under Section 95(2)(b) of the Old Motor Vehicles Act and there is no separate agreement entered into by the owner of the vehicle with the Insurance Company covering the public risk over and above the liability as contemplated under the said section and the insurance premium paid is only Rs.240/- covering the risk against the Insurance Company to an extent of Rs.50,000/- alone, and therefore, the Insurance Company is liable to pay Rs.50,000/-, but not over and above Rs.50,000/- and the remaining amount shall be paid by the owner of the vehicle alone.
4. It is further submitted that the order of the Tribunal relying upon the judgment of the Madras High Court in M/s. Oriental Fire and General Insurance Company v. V. Ganapathi Ramalingam, , wherein it was held that the limitation prescribed under Section 95(2) of the Act will not apply to the vehicles which have been comprehensively insured to cover all risks, is no more a good law, in view of the judgment of the Supreme Court in National Insurance Company Limited., New Delhi v. Jugal Kishore, (DB). The Supreme Court held in the abovesaid case that in the case of comprehensive insurance of the vehicle without paying the higher premium on the score of third party limits, i.e., liability to the public risks, the liability of the insurer cannot be unlimited or higher than the statutory liability fixed under Section 95(2) of the Motor Vehicles Act, 1939, and that to cover up a higher risk, a specific agreement has to be arrived at between the owner and the insurer and a separate premium has to be paid on the amount of liability undertaken by the Insurance Company in this behalf for the payment of compensation in respect of the excess statutory liability.
5. In the instance case also, as is evident from the policy of insurance, the appellant-Insurance Company did not undertake in the policy any liability in excess of the statutory liability. Therefore, the award against the appellant could be only in accordance with the statutory liability under Section 95(2)(b)(i) of the Act, i.e., to the extent of Rs.50,000/-.
6. For the aforesaid reasons, I agree with the contentions of the learned Counsel for the appellant and the appeal is accordingly allowed limiting the liability of the appellant to pay the compensation amount of Rs.50,000/- alone from out of the total compensation amount of Rs.80,600/-, and it is needless to say that the claimants are entitled to recover the remaining amount of Rs.30,600/- from the owner of the vehicle, i.e., the 7th respondent. No costs.