Delhi High Court
New India Assurance Company Ltd. vs Savitri Devi And Ors. on 17 December, 1990
Equivalent citations: 1991ACJ991, 43(1991)DLT290
JUDGMENT S.N. Sapra, J.
(1) The present appeal has been filed by the New India Assurance Company Limited, appellant herein, under Section 110-D of the Motor Vehicles Act, 1939, against the judgment dated March 22, 1982, whereby, the learned Motor Accident Claims Tribunal, has awarded a sum of. Rs. 54,000.00 in favor of the claimants, (respondents 1 to 6 herein).
(3) Briefly stated, the facts giving rise to the appeal are, that on September 4, 1979, at about 8.05 p.m., deceased Laik Ram (hereinafter called the deceased), boarded the bus No. Dlp 6733, from Bawana Bus stand, driven by respondent no. 7. Respondent no. 8 was the owner of the bus, which was insured with the appellant. When the bus reached near Bawana Brick Klin, deceased asked the driver to stop the bus. Upon this, the driver applied the brakes, but, when the deceased was still in the process of getting down, the driver gave race and the bus started suddenly at a fast speed, which caused fall of the deceased from the bus. Laik Ram was under the bus.
(3) Respondents 1 to 6, filed a petition, under Section 110-A of the Motor Vehicles Act, thereby, claiming compensation of Rs. 1,50,000.00, on the ground, that the death was caused on account of the rash and negligent driving of the vehicle, on the part of the driver, respondent no. 7.
(4) For the purpose of this appeal, it is not necessary to state all the facts. It is, however, sufficient to note that the appellant failed to file the written statement, in spite of the opportunity, granted to it. Vide order dated May 26, 1981, the defense of the appellant was struck off by the learned Motor Accident Claims Tribunal.
(5) On the pleadings, following issues were framed : 1. Whether the Laik Ram deceased received fatal injuries in the accident on 4.9.79 caused due to rash and negligent driving of bus No. DLP-6733 on the part of respondent no. 1. 2. Whether the petitioners are legal representative of the deceased ? 3. To what amount of compensation, if any, are the petitioners entitled and from whom ? 4. Relief.
(6) After considering the evidence and statements of the witnesses, the Motor Accident Claims Tribunal, held that the deceased had received fatal injuries, in the accident, due to rash and negligent driving of the offending bus, on the part of the driver, namely, Ram Niwas. The claimants, were also held to be the legal representatives of the deceased and, as such, issue no. 2 was decided in their favor.
(7) As mentioned above, an award of Rs. 54,000.00, has been made in favor of claimants and against the appellants and respondents 7 and 8 jointly and severally, along with costs. Respondents were given 2 months time to deposit the amount in the court, failing which, the claimants would be entitled to recover the same through court, with interest at the rate of 6% per annum, from the date of filing of the petition, till the date of its realisation.
(8) The only contention, urged before me, by Shri Pramod Dayal, learned counsel for appellant, is that under Section 95(2)(b)(ii)(4) of the Motor Vehicles Act, 1939, the maximum liability of the appellant, Insurance company, had been limited to the extent of Rs. 5,000.00, per passenger, in an accident of a passenger vehicle. According to Mr. Dayal, the maximum liability of the appellant, in the present case, was to the extent of Rs. 5,000.00, in view of the aforesaid provision, as, the accident took place on September 4,1979, prior to the amendment of the act, which was with effect from October 1, 1982. Reliance has been placed upon the judgment is M.K. Kunhimohammed v. P.A. Ahmedkutty & Ors. .
(9) The relevant part of Section 95(2) of the Motor Vehicles Act, 1939, as it stood prior to the amendment in 1982, reads as follows :- "95(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 goods vehicle, a limit of fifty thousand rupees in all, including the liabilites, if any, arising under the Workmen's Compensation Act, 1923 (8 of 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 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.
(10) In M.K. Kunhimohammed (supra), while considering the true meaning, object and scope of Section 95(2)(b)(ii) and (4) of the Act, their Lordships of the Supreme Court held : "Section 95(2)(b) as its existed before its amendment in 1982 dealt with the limits of the liability of an insurer in the case of motor vehicles in which passengers were carried for hire or reward or by reason of or in pursuance of a contract of employment. Sub-clause (i) of section. 95(2) provided that in respect of death of or injury to persons other than passengers carried for hire or reward a limit of Rs. 50,000.00 in all was the limit of the liability of the insurer. Sub-clause (ii) dealt with the liability in respect of death of or injury to passengers. Under that sub- clause there were two specific limits on the liability of the insurer in the case of motor vehicles carrying passengers. The first limit related to the aggregate liability of the insurer in any one accident. It was fixed at Rs. 50,000.00 in all where the vehicle was registered to carry not more than thirty passengers, at Rs. 75,000.00 - in all where the vehicle was registered to carry more than thirty but not more than sixty passengers and Rs. one lakh in all where the vehicle was registered to carry out more than 60 passengers. The said sub-clause proceeded to lay down the other limit in respect of each passenger by providing that subject to the limits aforesaid as regards the aggregate liability, the liability extended up to Rs. 10,000.00 for each individual passenger where the vehicle was a motor car and Rs. 5,000.00 for each individual passenger in any other case. Neither of the two limits can be ignored. In the present case the vehicle in question being a bus carrying passengers for hire or reward registered to carry more than thirty but not more than sixty passengers the limit of the aggregate liability of the insurer in any one accident was Rs. 75,000.00 and subject to the said limit the liability in respect of each individual passenger was Rs. 5,000.00. We find it difficult to hold that the limit prescribed in section 95(2)(b)(ii)(4) was only minimum liability prescribed by law. The amount mentioned in that provision provides the maximum amount payable by an insurer in respect of each passenger who has suffered on account of the accident. This appears to us to be a fair construction of section 95(2) of the act as it existed at the time when the accident took place. Our view receives support from at least two decisions of this Court."
(11) The judgment in M.K. Kunhimohammed (supra) is not applicable to the facts and circumstances of the present case, which will be mentioned hereinafter. The contention of learned counsel for the appellant is, to be rejected, for the following reasons.
(12) The appellant failed to file the written statement, and consequently, its defense was struck off, vide order dated May 26, 1981, passed by the learned Tribunal. Not only this, no evidence of any kind, whatsoever, was produced by the appellant to show that the policy, in respect of the offending vehicle, was, only to the extent of the statutory liability, as provided by Section 95 (2)(b)(ii) and (4) of the Act. Neither original nor the copy of the policy was placed on record. In fact, the appellant did not lead even oral evidence, in support of the contention, which is now being raised, for the first time, in this appeal. It is not disputed that Section 92(2)(b)(iii) & (4), as it stood prior to the amendment, provided the statutory limit. But, by agreement, the Insurance Company could issue a policy for unlimited liability.
(13) In Kela Devi and another v. Ram Chand and others, 29 (1986) Delhi Law Times 84, Single Bench of this Court held : "Even in this Court the Insurance Company has not taken any plea that their liability is limited to the amount against the 'Act only' Policy. No effort was made in this Court either to produce the policy or any evidence in support of that assertion. With this state of pleadings the question as regards the unlimited liability of the Insurance company would itself stand admitted. No policy has been produced either by the owner or by the Insurance Company. If the Insurance Company wanted its liability to be limited to 'Act Only' Policy apart from the specific averment in the written statement, it was incumbent on them to produce some evidence in support of their plea which is now being raised before me. The evidence as regards the premium paid or copy of the insurance policy could have been produced by the Insurance Company. As the present argument goes, the Insurance Company is asserting that its policy was limited only to the amount of the 'Act Only' Policy. If the Insurance Company was to assert that its liability was not an unlimited liability but limited only to the 'Act Only' Policy, the duty and the burden to prove the same was on the Insurance Company. One who asserts must prove. Was it necessary for the claimant or for the Tribunal to issue notice to the Insurance Company to produce the insurance policy or the evidence in support of their claims ? Neither in law nor on the state of pleadings in this case it was necessary to do so. Therefore, there is no substance in the submission of the counsel for the Insurance Company that the Court cannot draw presumption of liability higher than the one prescribed by the Act, namely the amount of 'Act Only' Policy. 1970 Acj 451 is the judgment of the Full Bench of the Madras High Court. That judgment is of no avail to the Insurance Company and is clearly distinguishable on facts. In paragraph 16 it is made clear that the Court was proceeding on the footing that the policy in force was an 'Act Policy' because both the parties had proceeded to argue the case on that footing. In the present case no policy had been produced and the assertion of the claimant was that it was a comprehensive third party policy with unlimited liability for the Insurance Company."
(14) Reference can also be made to another judgment of S.B. Wad, J. in Mantha Devi v. Gopal Singh 29(1986) Delhi Law Times, 525.
(15) In the absence of any evidence, with regard to the nature of the policy, the plea of the appellant cannot be accepted.
(16) There is another aspect of the matter, which goes against the appellant. Deceased Laik Ram, was still in the process of getting down, when suddenly, the bus started at a fast speed, as a result of which, the deceased fell down and was crushed under the wheels of the bus.
(17) In my view, the accident, which caused the death of the deceased, is not covered by the provisions, as contained in Section 95(2)(b)(ii 1(4) of the Act.
(18) In view of the findings, as given above, the appeal is dismissed with costs.
(19) The claimants, were awarded a sum of Rs. 54,000.00. The appellant and respondents 7 and 8 (respondents 1, 2 & 3 in the petition before the Motor Accident Claims Tribunal), were given two months time, to deposit the amount in Court, failing which, the claimants would be entitled to recover the amount with interest, at the rate of 6% per annum, from the date of filing of the petition. till realisation. Admittedly, the amount was not deposited within the period of two months. Instead, an application, being C.M. No. 208 of 1982, was filed by the appellant, along with appeal, for stay of the operation of the award. Vide order dated January 7,1983, the execution of the award against the appellant, was stayed, provided the entire amount was deposited with the Tribunal, within one month. It was further directed that the amount could be paid to the claimants, on their furnishing security, for its restitution. The amount was deposited after that order. It is not disputed that the amount could not be withdrawn, by the claimants, as they could not furnish the requisite security, being so helpless and poor, after the death of the sole bread earner. The amount is still lying in the trial court. It thus means, the amount was not deposited, within the period of 2 months, and on account of the conduct of the appellant, the amount was directed to be paid to claimants, on furnishing security.
(20) It is thus, directed that the amount be paid to claimants immediately, in accordance with award, with interest, as awarded in the judgment. If, the amount of interest has not been deposited, then, the appellant shall deposit the amount of interest, up to date within one month from today. Appeal dismissed.