Patna High Court
Oriental Fire And General Ins. Co. Ltd. vs Purushottam Goel And Anr. on 10 September, 1993
Equivalent citations: 1994ACJ619, 1995(43)BLJR45
JUDGMENT R.N. Sahay, J.
1. This appeal is by the insurer against the judgment and award of the Additional Motor Accidents Claims Tribunal, Dhanbad, by which the respondent has been granted compensation to the tune of Rs. 90,000/- and the liability of the appellant has been determined to the extent of Rs. 75,000/- under Section 95 (2) of the Motor Vehicles Act. The balance amount has been directed to be paid by respondent No. 2, who had not appeared to contest the claim.
2. Respondent No. 1, Purushottam Goel, is a self-employed in business and according to his case, he was earning Rs. 2,000/- per month from his grocery business. The claimant met with an accident on 29.7.1987 when he was going on a Trekker bearing registration No. BHG 1825 with his minor son. There were about 14-15 passengers in the Trekker. The Trekker was being driven by the driver at a very high speed and in spite of warning by the passengers, the driver paid no heed. When the Trekker reached Bhowtand near Kamdhenu Petrol Pump, a bus bearing registration No. BRN 9625 which was also coming in a very high speed from the opposite side and was also being driven in a rash and negligent manner, dashed against the said Trekker. The respondent was sitting on the left side of the front seat at that time and was seriously injured in the impact. He was 28 years of age at the time of the accident.
3. The appellant, which is Oriental Fire and General Ins. Co. Ltd., admitted that the above bus No. BRN 9625 was insured with it. However, it was pleaded that the liability was strictly limited to the terms and conditions of the policy. Its specific defence was that the Trekker No. BHG 1825 was not insured with it and the alleged accident had taken place solely due to the rash and negligent driving of the Trekker. The owner of the Trekker did not appear. The respondent, PW 4, in his evidence before the Tribunal stated that the occurrence had taken place mainly because of the rashness on the part of the driver of the bus, although there was some fault on the part of the driver of the Trekker also. In support of his case, the claimant examined two other persons who were also travelling in the same Trekker as his co-passengers. These witnesses corroborated the evidence of the claimant. The leg of the claimant was fractured and he was taken to Nursing Home. The Tribunal has found that the occurrence had taken place due to the negligence on the part of the driver of the bus.
4. According to the evidence of the doctor who had treated the claimant, the claimant had suffered permanent disablement and the percentage of disablement was 75 per cent. On the quantum of compensation to be granted to the claimant, the Tribunal relied on a decision reported in Anugrah Sharma v. Balbir Singh 1992 ACJ 284 (Delhi). The fact of that case is similar to the present case. Tribunal also considered the expenses incurred by the claimant on his treatment.
The Tribunal in para 10 of the judgment has considered the question of damages as follows:
Now it has got to be calculated what financial loss he had to suffer on account of his disability. According to the plaint, his earnings were Rs. 2,000/- per month. In his deposition the plantiff, PW 4, in para 5 has stated that he was earning Rs. 3,000/- per month. According to a customer from the shop of the plaintiff Mewa Ram, PW 5, the earnings of the plaintiff had been reduced up to more than Rs. 1,000/- per month. This assessment of PW 5 is not supported by any account book maintained by the plaintiff. It is, therefore, difficult to rely upon the testimony of PW 5. The actual loss may be reasonably fixed at Rs. 300/- per month. On the multiplier scale of 20, this loss will come to Rs. 300/- x 12 x 20, i.e., up to Rs. 72,000/-. After adding the other charges of Rs. 18,669/- as mentioned, the total claim may come to Rs. 90,669/- to be rounded off to Rs. 90,000/- in all.
The Tribunal did not agree with the contention of the appellant that the driver of the Trekker was mainly responsible for the accident. The appellant did not examine any evidence to counter the evidence led by the claimant.
5. Mr. Bhowmik, learned counsel for the appellant, has assailed the judgment of the Tribunal mainly on two grounds:
(1) He contended that liability of the insurer under Section 95 (2) was statutorily restricted to only Rs. 50,000/-and hence the award of the Tribunal extending the liability to Rs. 75,000/- was without jurisdiction.
(2) He has next contended that the Tribunal has not properly considered the evidence about the contributory negligence and hence it came to a wrong conclusion.
6. So far as the first contention of Mr. Bhowmik is concerned, the policy of the insurance was not filed by the appellant before the Tribunal to show that the liability was limited to Rs. 50,000/- only. It is true that in the absence of a specific agreement, undertaking of a liability in excess of the statutory limit without payment of separate premium therefor, the insurance liability will be confined to that provided under the Act in respect of third party risk. [See National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC)].
7. It is however, well settled that despite the statutory liability, there is nothing under the Act to prevent the insurer from entering into a contract of insurance to cover an amount larger than prescribed in the statute. Supreme Court in the case reported in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), deprecated the attitude of the insurance company in not filing the policy of insurance before the Tribunal and then taking a plea that its liability was limited.
8. The policy of insurance was not filed along with the memo of appeal. Mr. P.K. Bhowmik prayed for time for filing the policy. He submitted that in the abovementioned case, insurance company was permitted to file the policy and considering the policy, the Supreme Court reduced the liability. What is surprising is that even after the decision of the Supreme Court, the insurance company is not following the direction of the Supreme Court, there is no reason to grant further adjournment to fill up the lacuna.
9. Second contention of Mr. Bhowmik is untenable although in the claim petition it was stated that the driver of the Trekker was also driving in high speed but according to the evidence, it was the bus which dashed against the Trekker. The driver of the bus was not examined, nor any evidence was adduced by the insurance company. The defence of the insurance company is limited to matters enumerated under Section 149 (2) of the Motor Vehicles Act, 1988. No other defence is open to the insurer. It is another reason, the argument of the counsel for the appellant with regard to the contributory negligence cannot be allowed.
10. There is no merit in this appeal and it is accordingly dismissed. There will be no order as to costs.