Madhya Pradesh High Court
The United India Fire & Gen. Insurance ... vs Natwarlal And Two Ors. on 8 July, 1991
Equivalent citations: 1992ACJ585, 1992(0)MPLJ889, AIR 1992 MADHYA PRADESH 292, (1992) MPLJ 889, (1992) 1 TAC 144, (1993) 1 ACC 339, (1992) 2 ACJ 585, (1993) 1 CIVLJ 550
JUDGMENT R.K. Verma, J.
1. This is an appeal filed by the insurer-non-applicant against the award dated 7-8-1978 made by the Motor Accident Claims Tribunal, Mandleshwar in Claim Case No. 1/78 whereby the learned Tribunal has awarded compensation to the claimant-injured amounting to Rs. 15,000/- with interest @ 6% per annum from the date of the claim petition till realisation.
2. The brief history of this case is like this, on 29-8-77, the passenger bus bearing Registration No. MPF-7144 carrying the claimant, a young boy having passed B.Sc. was involved in an accident due to rash and negligent driving by its driver as a result of which, the claimant-passenger sustained grievous injuries and has suffered a partial permanent disablement of his hand as found by the Tribunal. The learned Tribunal made an award of Rs. 15,000/- (15,000/-) with interest as aforesaid against all the three non-applicants, namely, the bus-owner, driver and the insurer jointly and severally. However, the Tribunal gave a direction to the insurer, the present appellant, to pay the entire amount of award even though the liability has been held to be of all the three non-applicants jointly and severally. Being aggrieved by this direction of the Trubunal, the insurer-appellant has filed this appeal.
3. This appeal came up for hearing before me for the first time in the year 1984. The only contention, raised by the learned counsel for the appellant has been on the question of limited liability of the insurer. It was contended that the maximum statutory liability of the insures in respect of a passenger in the bus is limited to Rs. 5,000/- only, under the provisions of Section 95(2)(b) of the Motor Vehicles Act, 1939. It was urged that for the balance amount of the award, other non-applicants can be held liable. Reliance was placed on a Division Bench Decision of this court in Sushila Devi v. Ibrahim 1974 ACJ 150 : (AIR 1974 MP 181) in support of his contention, that the liability of the insurer can extend up to Rs. 5,000/- since the claimant has neither pleaded nor proved that the contract of insurance entered into between the owner of the vehicle and the insurer provided for payment of any sum higher than Rs. 5,000/- as provided under Section 95(2)(b) of the Act.
4. The learned counsel for the respondents contended that the appellant-insurer has not pleaded any limitation of its liability under the policy of insurance in the written-statement, which has been filed jointly by all the three non-applicants and since the insurance policy has not been produced by the insurer, in cannot be contended by the insurer that the limit of liability as per policy does not exceed Rs. 5,000/-. In support of his contention, the learned counsel for the claimant-respondent placed reliance on a Division Bench Decision of this court in LPA No. 6/81 Rehana v. Abdul Majied and six others decided on 20-9-84.
5. In view of difference of opinion expressed in the two Division Bench decisions of this court as aforesaid I referred the following question that arose for opinion of the Full Bench:
(1) Whether in a claim case for compensation exceeding the minimum statutory limit as prescribed under Section 95 of the Motor Vehicles Act, the claimant cannot be awarded a sum higher, than the said minimum statutory limit against the insurance company unless he pleads and proves that the insurer provided in the contract of insurance for a sum higher than that fixed under Section 95(2)(b).?
(2) Whether the Tribunal can award against Insurance Company compensation amount in excess of the minimum statutory limit as provided under Section 95 of the Motor Vehicles Act when neither the claimant nor the insurer has pleaded or proved the terms and conditions of the insurance policy.?
6. At the time of hearing of the matter by the Full Bench on 30-10-86, the learned counsel for the parties brought to the notice of the court that the appellant has filed an application under Order41 Rule 27 read with Section 151 of the Code of Civil Procedure for adducing additional evidence and that the orders have not been passed in that behalf. It was directed by the Full Bench that the said application under Order 41 Rule 27 of the Code of Civil Procedure be disposed of by the. learned single Judge. Accordingly, the application of the appellant for permission to produce the insurance policy as additional evidence under Order 41 Rule 27, CPC, was placed before me for hearing. After hearing the parties I held that the appellant had failed to make out a case for production of additional evidence and that there was no pleading of limited liability in the written-statement of the appellant-company to justify production of additional evidence. As such the application under Order 41 Rule 27 seeking permission to produce the insurance policy as additional evidence, was rejected by order dated 27-2-1987. The matter then came up for hearing before the Full Bench for deciding the reference aforesaid. The Full Bench, after hearing the parties decided the questions referred to it by order dated 10-8-88 as follows:--
"For all these reasons, our answer to the question referred to by the learned single Judge is that a Motor Accident Claims Tribunal can hold an insurance Company liable to pay an amount in excess of the statutory limit prescribed by Section 95(2)(b) of the Act if the policy covers that liability, that the question as to whether an insurance company is or is not so liable, should not be decided on the abstract doctrine of burden of proof, that the Insurance Company should produce in such cases before the Tribunal, a true copy of the policy of insurance, that in the event of a failure of the insurance company to do so, the Tribunal should direct the insurance company to produce such copy and that failure to comply with the direction of the Tribunal in that behalf would justify drawing of an adverse inference against the insurance company.
10. In the instant case, the appellant Insurance Company sought leave to bring the true copy of the policy of insurance on record but the leave was, however, refused. In the light of our opinion, the appellant would now be entitled to bring on record the true copy of the policy of insurance. The claimant will be given opportunity to controvert the correctness of the copy and in case of any dispute, a finding can be called in that behalf from the Tribunal.
11. Let the matter be now placed before the learned single Judge for deciding the appeal. Parties shall bear their own costs of this reference."
7. Pursuant to the Full Bench decision as aforesaid, the appellant Insurance Company filed an application for production of the copy of the policy, which was allowed, but since the claimant-respondent No, 1 disputed the genuineness of the document, I directed the Tribunal to make enquiry about the genuineness of the document. The learned Tribunal has found the said copy of the policy to be a true copy of the policy.
8. Learned counsel for the appellant Insurance Co. has, by reference to the entries of premium charged in the policy, submitted that no extra premium was charged to cover the liability in excess of the statutory insurance amount as provided under Section 95(2) of the Motor Vehicles Act, 1939 -
9. According to the submission of the learned counsel for the appellant Insurance Co. the limit of liability in respect of each individual passenger is limited to Rs. 5,000/-only under Clause (4) of Section 95(2)(b)(ii) of the Act, as is stood at the material time of the accident. The Supreme Court decision in M.K. Kunhimohammed v. P.A. Ahmedkutty 1987 ACJ 872: (AIR 1987 SC 2158) has been cited on behalf of the Insurance Co. in support of this submission.
10. Learned counsel appearing for the claimant-respondent No. 1 has, on the contrary, contended that on a proper construction of Section 95(2) of the Act, the limit of liability in respect of any one accident from the viewpoint of the injured is Rs. 50,000/-, the sum named in the policy. Learned counsel has placed reliance on a decision of the Supreme Court in Motor Owner's Insurance Co. Ltd. v. Jadavji Keshavji Modi, 1981 ACJ 507 : (AIR 1981 SC 2059).
11. In order to appreciate the rival contentions bearing on the interpretation of Section 95(2)(b)(ii) it would be proper to reproduce the relevant part of that provision as it stood on the date of the accident i.e. 29-8-1977, before referring to the two decisions of the Supreme Court cited before me as aforesaid.
12. There have been amendments from time to time in Sub-section (2) of Section 95 of the Act. After the Motor Vehicles (Amendment) Act, 1956 w.e.f. 6-2-1957 the said sub-section read as follows :--
"95. Requirements of policies and limits of liabilities:-- :
(2) Subject to the proviso the Sub-section (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 good vehicle, a limit of twenty thousand rupees in all including the liabilities, if any, arising under the Workmen's 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) Where the vehicle is a vehicle in which passengers are harried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver; (c) Where the vehicle is a vehicle of any other class the amount of the liability incurred
13. The Motor Vehicles (Amendment) Act, 56 of 1969 which came into force on 2-3-1970 introduced further amendment in Section 95(2) which in the amendment for reads as under:--
"95. Requirements of policies and limits of liability:--
(1).....
(2) Subject to the proviso to Sub-section (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 good vehicle, a limit of (fifty) thousand rupees in all including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in member, being carried in the vehicle;
(b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment: --
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers :--
(1) a limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers;
(2) a limit of seventy-five thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers;
(3) a limit of one lakh rupees in all where the vehicle is registered to carry more than sixty passengers; and (4) Subject to the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab and five thousand rupees for each individual passenger in any other case;
(c) save as provided in Clause (d), where the vehicle is a vehicle of any other class the amount of liability incurred;
(d) irrespective of the class of the vehicle, a limit of rupees two thousand in all in respect of damage to any property of a third party."
The aforesaid sub-section was again amended by Act No. 27 of 1982 w.e.f. 1-10-82 and thereafter read as under:
"95. Requirement of policies and limits of liability:
(1).....
(2) Subject to the proviso to Sub-section (1) a policy of insurance shall cover arty 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 one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's 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) Where the vehicle is a vehicle in which passengers are carried for hire or forward or by reason of or in pursuance of a contract of employment.
(i) in respect of persons other than passengers carried for hire or reward a limit of fifty thousand rupees in all;
(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;
(c) save as provided in Clause (d) where the vehicle is a vehicle of any other class, the amount of liability incurred;
(d) irrespective of the class of the vehicle, a limit of rupees (six thousand) in all in respect of damage to any property of a third party."
14. In the Supreme Court decision in Motor Owner's Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 507 : (AIR 1981 SC 2059) cited by the counsel for the claimant-respondent No. 1, the motor accident out of which that case arose, happened on 1-2-1966 due to collision between a motor car and a goods truck and as a result of this accident the driver of the car died instantaneously and the respondent Jadavji Keshavji Modi who was travelling in the car sustained injuries. The truck was insured against the third party risk with Insurance Co., the appellant in the case. The legal representative of the deceased driver and Jadavji Keshavji Modi filed separate claims which led to the said appeal in the Supreme Court.
15. Construing Section 95(2)(a) as it stood on the date of the accident i.e. 1-2-1966, their Lordships held that the liability of trucks Insurance Company was not limited to Rs. 20,000/- in all under the statutory policy for both the claims and that any one accident means accident of any one. The word 'accident' is used in the expression 'any one accident' from the point of view of the claimant and the word 'in all' implies 'that Insurance Company's liability will extend to a sum of Rs. 20,000/- in respect of death or injuries suffered by each one.
16. In the other Supreme Court decision m M.K. Kunhimohammed v. P.A. Ahmedkutty 1987 ACJ 872 : (AIR 1987 SC 2158) cited by the learned counsel for the appellant motor accident occurred on 24-7-1978 in which one of the passengers inithe bus died. Their Lordships while construing the provision of S.95(l)(b)(ii) (4) as is stood on the date of the accident observed thus:--
"We find it difficult to hold that the limit Prescribed in Section 95(2)(b)(ii) (4) was only the minimum liability prescribed by law. The amount mentioned in that provision provides the maximum amount payable by an insurance in respect of each passenger who has suffered on account of the accident."
"Parliament never intended that the aggregate liability of the insurer mentioned in sub-clauses (1), (2) and (3) of Section 95(2)(b) (ii) would be the liability of the insurer ever when one passenger had died or suffered injury on account of an accident. Such liability was always further limited by Sub-clause (4) of Section 95(2)(b)(ii) of the Act."
17. The view taken by the Supreme Court in the case of Jadhavji Keshavji Modi 1981 ACJ 507: (AIR 1981 SC 2059) (supra) and the view taken in the subsequent decision of the Supreme Court in the case of M.K. Kunhi-mohammed 1987 ACJ 872: (AIR 1987 SC 2158) (supra) are apparently divergent in construing the provision of Section 95(2) of the Act.
18. The case of Jadavji Keshavji (supra) does not appear to have been considered on the question of construction under Section 95(2) of the Act in the subsequent decision of M.K. Kunhi Mohammed (supra). The earlier decision of the Supreme Court in the case of Jadhavji Keshavji (supra) is by a Bench of three Judges whereas the subsequent decision in the case of M.K. Kunhi-mohammed (supra) is by a Bench of two Judges. No other decision of the Supreme Court has been cited to show that the decision in the case of Jadhavji Keshavji Modi (supra) has been overruled. I, therefore, reply on this decision to adopt the construction placed by the Supreme Court in that decision on the two material sets of words occurring in Section 95(2) namely, "any one accident" and "in all" as occurring in Section 95(2) reproduced hereinabove. I, therefore, hold that the liability of the appellant Insurance Company will extend up to a sum of Rs. 50,000/- in respect of the injury suffered by one claimant. Since in the instant case the liability in respect of the injury of the claimant has been quantified by the Tribunal as Rs. 15,000/- I hold that the appellant-Insurance Company is fully liable jointly and severally along with the owner and the driver to pay the entire sum of the award.
19. In the result, this appeal fails and is hereby dismissed. In the circumstances of the case, there shall, however, be no order as to costs.