Rajasthan High Court - Jaipur
Smt. Ronak Begum And Ors. vs Jorasingh And Ors. on 5 May, 1998
Equivalent citations: AIR1998RAJ262
JUDGMENT P.C. Jain, J.
1. These appeals are directed against the Award dated 24-11-1993 passed by the learned Motor Accidents Claims Tribunal, Nagore whereby the learned Tribunal has awarded a sum of Rs. 2,74,000/- to the claimants of MACT Case Nos. 11/88[17/88New] and Rs. 1,50,000/-to the claimants of MACT Case No. 16/88(18/88 New].
2. The brief facts of the case are that on 6-9-1987. a private Bus No. 5687 which was going from Jodhpur to Nagore collided with a Private Ambassador Car No. HPA 1281 coming from Nagore to Jodhpur. As a result of the above collision, the owner and driver of the said Ambassador Car Shri Majid Khan and one Shri Jagsingh (Jabarsingh) a passenger in that Ambassador car lost their lives. The said Bus was being driven by Driver Jorasingh and it was owned by respondent Jaswant Singh. The Bus was insured with United India Insurance Company, Jodhpur vide Cover No. 045737 with effect from 4-5-1987 to 3-5-1988. It is alleged that the above Bus was coming from Jodhpur to Nagore whereas the Car was going from Nagore to Jodhpur. A bus of the Rajasthan State Road Transport Corporation was proceeding ahead of the above Bus. The Bus Driver Jorasingh wanted to overtake the above Bus of Rajasthan State Road Transport Corporation and in that process, that Bus collided with the Ambassador Car, as a result of which, the Driver of the Car Shri Majid Khan and passenger Jabarsingh died after sustaining fatal injuries.
3. The dependants of Owner and Driver of the Ambassador Car Shri Majid Khan viz., Smt. Ronak Begum and others have filed Claim Petition No. 11/88[17/88New] whereas the dependants of passenger Shri Jabarsingh have filed Claim Petition No. 16/88 118/88 New|. The claimants have alleged that the above accident occurred on account of the rush and negligent driving of his Bus by Driver Jorasingh which resulted in the death of Majid Khan and Jabarsingh. The claimants of Majid Khan and Jabarsingh claimed compensation to the tune of Rs. 5,46,000/- and Rupees 6,91,000/- respectively.
4. The Bus Driver Jorasingh did not filed any reply to the claim petitions. However, the owner of the Bus namely, Jaswanl Singh contested the claim petitions on the ground that the accident in fact occurred on account of rash and negligent driving of Majid Khan. The Driver of Rajasthan State Road Transport Corporation signalled the Driver of Bus to overtake the Bus. Therefore, he overtook his bus and in that process, all of a sudden, the Car appeared coming in front of the above Bus and that has resulted in collision. The Driver of the Car could have avoided the same.
5. In the alternative, it is submitted that in case it is held that Driver Jorasingh was responsible to rash and negligent driving of the Bus, the Insurance Company may be saddled with liability a--the Bus was comprehensively insured by the above Insurance Company.
6. The United India Insurance Company also filed a reply to the claim petition and contested it on the ground that the claims submitted by the claimants are highly exaggerated. The maximum liability of the Insurance Company is Rupees 50,000/- only because the Bus was a passenger vehicle. It was also averred that the accident occurred on account of the rash and negligeni driving of the Car by Majid Khan. It was also contended that at the relevant time. Driver of the Bus Jorasingh was not having a valid driving licence and, therefore, he was not competent in drive the above Bus. However, since Jorasingh had driven the above Bus without any licence, he breached the relevant condition of the Insurance policy and thus, the Insurance Company cannot be held responsible for this accident.
7. On the pleadings of the parties, the learned Motor Accident Claims Tribunal framed as man as 12 Issues. The learned Tribunal vide its Awani dated 24-11-1993 awarded a sum of Rupees 2,73,000/- in favour of the claimants of Claim Petition No. 11/88(17/88 New] and Rs. 2,74.000/ in favour of the claimants of Claim Petition No. 16/88 118/88 New], but the liability of the Insur ance Company was limited to the extent of Rs. 1,50,000/- only.
8. Being dissatisfied with the above Award passed by the learned Tribunal, the dependants of deceased Majid Khan and the dependants of Jabarsingh have filed Appeals No. 148 of 1994 and 109 of 1994 respectively. The Insurance Company has also filed Appeals Nos. 141 and 142 of 1994 against the above Award passed in favour of the dependants of Jabarsingh and Majid Khan respectively.
9. I have heard Mr. H. M. Panwar, the learned counsel appearing for the claimants, Mr. Yashwant Mehta, the learned counsel for the Insurance Company and Mr. R. K. Mehta the learned counsel for the Bus owner Jaswant Singh and have very carefully gone through the record of the case.
10. In these appeals, the claimants have assailed the impugned Award on the ground that the learned Tribunal has not awarded a reasonable compensation in their favour. On the other hand, the Insurance Company has challenged the impugned Award on the ground that as per the condition of the Insurance policy, the liability of the Insurance Company was limited.
11. I may state that while dealing with Issue No. 1, the learned Tribunal has held that the accident occurred on account of rash and negligent driving of the Bus by its Driver Jorasingh. This finding is based on proper appreciation of evidence and thus, it cannot be challenged by the Insurance Company in view of Section 92 (2) of the Motor Vehicles Act, 1939. As a matter of fact, the Insurance Company has also not challenged this finding.
12. Mr. Yashwant Mehta, the learned counsel appearing for the Insurance Company has eon-tended that that the ownerof the Bus viz., Jaswant Singh produced the carbon copy of the insurance cover note No. 045737 whereas the Insurance Company has produced the copy of the insurance policy No. 140520/24/1/3979 issued on 18-8-1989 by Jodhpur Branch which has been marked as Ex. N.2. The insurance policy issued in respect of the above Bus was issued on payment of normal tariff, which was of a passenger vehicle. The maximum liability was Rs. 50,000/-only. He has submitted that though the learned Tribunal has accepted in principle the concept of limited liability of the Insurance Company but it has erred in accepting the claim of Rs. 1.5 lakhs. He has further contended that it is for the insured to prove that there was a contract to the contrary under which the Insurance Company has become liable to pay the enhanced compensation to the third party.
13. He has contended that in the instant case, the claimants have not led an iota of evidence that the owner of the Bus obtained a insurance policy by paying the enhanced premium. Hence, the learned Tribunal ought to have not passed the award exceeding Rs. 50,000/- in each of the claim cases.
14. In this connection, the learned counsel appearing for the Insurance Company has placed reliance on New India Assurance Co. Ltd. v. Shanti Bai, AIR 1995 SC 1113. The Supreme Court while interpreting the provisions contained in Section 95 (2) (b) of the Motor Vehicles Act, 1939 held that no special contract between company and owner of vehicle to cover unlimited liability was arrived at and thus, the policy would cover only statutory liability of Rs. 15,000/- only. It is relevant to mention here that at the relevant time the statutory liability was only Rs. 15,000/-.
15. Mr. Mehta has, therefore, contended that the learned Tribunal ought to have taken into consideration the insurance policy Ex.N.2. He also submitted that the cover note was produced by the owner of the Bus and it also shows that in contract to the contrary was entered into between owner of the vehicle and the Insurance Company Hence, the liability of the Insurance Company was limited as fixed by the Statute.
16. On the other hand, Mr. R. K. Mehta and Mr. H. R. Panwar, the learned counsel appearing for the Bus Owner and the claimants respectively have contended that the alleged insurance policy Ex.N.2 produced by the Insurance Company is neither a carbon copy nor photostat copy of the original insurance policy. They contended that it appears that this document Ex.N.2 has been prepared afresh by the Jodhpur Office of the Insurance Company to defeat these claim petitions. They have submitted that by this document, the Insurance Company cannot be said to have this charged the burden of proving the policy. The claimants have produced Vijaymal Patwa, who was Manager of United Insurance Company Nagore when he was examined by the learned Tribunal on 22-9-1993. The learned counsel have referred to the statement of Vijay Mal Palwa and submitted that from his statement, it has been proved that it is not known who issued the above policy Ex.N.2. He admitted that the carbon copy of the policy is being maintained. Similarly proposal form, Docket Book. Receipt Books etc relating to the policy are also maintained in the office of the Insurance Company. However, he has stated that he does not know whether the said documents in respect of the above policy are still available in the office or not. He also made a very important statement that he does not know who has prepared the document Ext.N.2 as it was prepared by Jodhpur Office. It was not prepared in his presence. The signatures C to D and E to F were not made in his presence. He has further stated that he was not asked by the Insurance Company to come to the court with the carbon copy of the policy. He also did not bring the premium register. When this witness was asked as to who was the concerned Officer at the relevant time who issued this policy, he could not reply.
17. Mr. H. R. Panwar, the learned counsel appearing for the claimants has, therefore, submitted that the above insurance policy is neither a carbon copy nor a photostat copy of its original. Moreover, the above witness Vijaymal Patwa has not proved the above policy. Thus, it must be held that the Insurance Company has failed to prove the Insurance policy and it has also failed to produce the carbon or photostat copy of its original. In other words, there is no policy available on record.
18. It is true that the Insurance Policy Ex. N.2 is neither a carbon nor a photostat copy of its original. The witness Vijaymal Patwa has also not proved the above Insurance Policy. Thus, I hold that the Insurance Company has failed to prove the insurance policy. It has also tailed to produce the carbon or photostat copy of the original of the insurance policy.
19. Now, the important question that arises for consideration in these appeals is that since the Insurance Company has failed to prove the relevant Insurance Policy of the vehicle, what would be the quantum of compensation and to what amount, the Insurance Company would be liable. In this connection, the learned counsel has referred to Rangachari Laxmi Narsimham v. Prakash Chandra, 1987 (1) ACC 197; United India Insurance Company Ltd. v. Tahir Mohd. and others (S.B. Civil Misc. Appeal No. 29 of 1992, decided by this Court vide judgment dated 23-2-1996); New India Insurance Company v. Mohinder Kaur, 1989 ACJ 343; National Insurance Co. Ltd. v. Narain Das Mehta, 1986 ACJ 919; New India Assurance Co. Ltd. v. Dr. V. K. Sanghal, 1996 ACJ 1055; Oriental Insurance Co. Ltd. v. Dulari Devi, 1995 ACJ 9; Dilip Kumar Saha v. Runnu Sarkar, 1995 ACJ 353; National Insurance Co. Ltd. v. Chandra Bhaga, (1991) 1 ACC 643; Ramprasad Purohit v. Ramesh Chandra, 1991 (1) ACC 644; Dr. Gop Ramchandani v. Onkar Singh. 1993 ACJ 577; Krishna Lal v. Mohd. Din, 1993 ACJ 907; Malwa Bus Service (P) Ltd. v. Amrit Kaur, 1988 ACJ 190.
20. I have considered the rival submissions made at the bar.
In National Insurance Company Ltd. v. Jugal Kishore, 1988 ACJ 270: (AIR 1988 SC 719), the Insurance Company without placing any insurance policy on record, argued that the liability of the Insurance Company is limited only to the extent provided under Section 96(2) of the Act. Repealing that argument, the Apex Court held as under (at page 723 of AIR):
"We accordingly wish to emphasize that in all such cases, where the insurance Company concerned wishes to take adefect in the claim petition that its liability is not in excess to the statutory liability, it should file a copy of the xxx xxx xx Filing the copy of the insurance policy is not only be the cut short to avoid the litigation but it also helps the Court in doing the justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly cannot be over emphasised."
21. The burden of proof that the liability is limited to the extent provided in Section 95 of the Motor Vehicles Act, 1939 lies on the insurer. Thus, in order to discharge this burden, the Insurance Company was bound to produce the carbon copy or the photostat copy of the original of the insurance policy. In case, the photostat copy or carbon copy of the original of the insurance policy is not available with the Insurance Company, it may produce the relevant record of the policy like Receipt Book of the Premium, Proposal form, cover note etc. As stated above, in the instant case, the Insurance Company has failed to prove the insurance policy or any of the above record. The insurance policy produced by it is neither a carbon copy nor photostat copy of its original and hence, it cannot be considered as a relevant document. It appears that this policy has been prepared on the basis of certain material or particulars which were available in the Insurance Company with regard to this policy. It can also be not ruled out that perhaps the cover note was utilised by preparing this new policy document.
22. The learned counsel appearing for the Insurance Company has placed reliance on the cover note, the copy of which is available on the record. However, it may be stated that the above document has not been proved either by the owner of the Bus or by the Insurance Company and hence, it has not been judicially proved. Therefore, I find myself unable to consider this document as cover note with regard to the above policy.
23. I have carefully gone through the above referred authorities cited by the learned counsel appearing for the claimants. I am firmly of the opinion that since the Insurance Company has failed to prove the insurance policy and has also failed to produce the carbon or the photostat copy of the sand policy on record the Insurance Company may be saddled with the entire amount of award.
24. NOW, I take up the appeals filed by the claimant. The learned counsel appearing for the claimants has contended that the compensation awarded by the learned Tribunal is not adequate. It may be stated that the learned Tribunal has awardff a sum of Rs. 2.73,000/- to the dependants of deceased Jabarsingh and a sum of Rs. 2,74,000/- to the dependants of deceased Majid Khan. While deciding the above appeals filed by Insurance Company, I have already held that the liability of the Insurance Company is unlimited. Hence, the finding of the learned Tribunal as regards limiting the award to a sum of Rs. 1,50,000/ - in each case is erroneous and in each case, the claimar is shall be entitled to get the amount of Award as assessed by the learned Tribunal.
25. After considering the evidence available on record, I am of the opinion that the compensation awarded by the learned Tribunal cannot be said to he in any way on the lower side and it is adequate in the facts and circumstances of the case.
26. For the above reasons, I find no force in the Appeals No. 141 of 1994 and 142 of 1994 and thus, they are dismissed. However, I partly accept the Appeals Nos. 109 of 1994 and 148 of 1994 and order that the claimants shall be entitled to the whole amount of compensation as assessed by the learned Tribunal with interest at the rate of 12% p.a. from me date of filing of the claim petitions.
27. Before parting with these appeals, in order to safeguard the interest of the claimants, the learned Tribunal is directed to ascertain the present need of the claimants and should release the amount in cash in favour of the claimants which he considers proper and the remaining amount be got invested in Fixed Deposits in any Nationalised Bank in the names of claimants according to the proportions as determined by the learned Tribunal. The above Fixed Deposits be not en cashed prematurely except with the permission of the Court. This exercise will be completed by the learned Tribunal in consultation with the claimants or their counsel whosoever may be available within a period of three months from today positively.
28. There will be no order as to costs of these appeals.