Kerala High Court
Oriental Insurance Co. Ltd. vs Kunhirama Poduval on 20 February, 2002
Equivalent citations: 2002ACJ1492, 2002 A I H C 2855, (2002) 2 KER LT 178, (2002) 3 ACC 13, (2002) 3 ACJ 1492, (2002) 1 KER LJ 538, (2002) 3 CIVLJ 785
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
JUDGMENT K.S. Radhakrishnan, J.
1. MFA 1307 and 1034 of 1993 were filed by the Union of India represented by Southern Railway against the order in O.P. (M.V.) 122 and 123 of 1991 of Motor Accidents Claims Tribunal, Kasargod. MFA 633 and 634 of 1992 were preferred by the Oriental Insurance Company Ltd. against the award in O.P. 122 and 123 of 1991 of Motor Accidents Claims Tribunal, Kasaragod. O.P. 122/91 was preferred by the legal heirs of deceased Mohammed Kunhi who died in a road traffic incident which took place on 25.5.88 at Udinoor. The accident occurred when the deceased was travelling in an autorikshaw No. KLC. 5179 from Karivallur to Udinoor. While the autorikshaw was crossing the level crossing No.L.C.267 on Nadakkavu Echakai Road, a Rail way Engine No. WDM2/18598 came from Trikkarpur and proceeding towards Chervathur hit on the autorikshaw and killed the passengers in the autorikshaw. The deceased was a passenger in the autorikshaw. Claimants are his legal heirs. Claimants in O.P. (MV) 123/91 are the legal heirs of deceased Aravindakshan who also died in the aforesaid accident. He was also travelling in the autorikshaw No. KLC 5179. Deceased was a coolie and was earning Rs. 400/- per month. He was aged only 19 years. A total compensation of Rs. 2 lakhs was claimed. An amount of Rs. 40,000/- was awarded. In O.P.(MV) 122/91 deceased was aged 35 years. He was the owner of a rice mill getting Rs. 1000A per month. Legal heirs claimed an amount of Rs.2 lakhs as compensation. An amount of Rs. 1,30,000/- was awarded. In the accident the autorikshaw driver escaped. As per policy condition liability per passenger was only Rs. 15,000/- beyond which the owner of the autorikshaw was liable. Insurance company as well as the owner of the autorikshaw took up the stand that it was due to the negligence of the railways that the accident occurred. On the other hand, Railways took up the stand that it was entirely due to the negligence of the autorikshaw driver that the accident occurred. Considering the oral and documentary evidence tribunal came to the conclusion that there was contributory negligence on the side of the Railways as well as the autorikshaw driver. Consequently 60% negligence was attributed to the autorikshaw driver and 40% to the Railways. Aggrieved by the aforesaid award as we have already indicated both the Insurance Company as well as the Railway have come up in appeal. There is no appeal by the owner of the autorikshaw and therefore as far as the owner and driver are concerned the award has become final.
2. The only question to be considered is whether the Court below is justified in apportioning the negligence. Railway took up the stand that the Insurance Company be made liable for the entire claim. They also pleaded that even if the Insurance Company is not liable they could honour the claim and recover the same from the owner. We find from the facts that in the instant case the level cross was unguarded one. RW1, driver of the train was examined. He stated that the train had approached the level cross whistling and therefore there was sufficient indication about the running train. PW3 has stated that it was unmanned level cross and no board was exhibited near the gate. He also deposed that autorikshaw came in a normal speed. RW-1 engine driver in his evidence has deposed that if the autorikshaw came in normal speed the driver could have heard the noise of the running train. We are of the view in the facts and circumstances of the case Tribunal is justified in holding negligence on either side. If there was proper whistling autorikshaw would not have entered the level cross. Driver would have been careful. All the same in the absence of railway gate he should have been more alert and vigilent. On the whole we are of the view autorikshaw driver as well as the train driver were negligent. We find no good reason to interfere with the award of the Tribunal.
3. Counsel for the claimants contended that the policy is unlimited and therefore Insurance Company is bound to compensate the claimants. Further it was stated that nobody was examined on the side of the Insurance Company. Consequently claimants were not in a position to cross examine the Insurance Company's witness so as to elicit information on Ext. B1. B1 is the insurance policy. We have perused the policy. B1 policy would reveal that it was a limited policy and limited for passengers up'to Rs. 15000/- each. There was only two passengers in the autorikshaw and consequently Insurance Company is liable only for Rs. 15,000/- each. There is nothing to show that the owner of the autorikshaw had paid extra premium. We are of the view non-examination of the officer of the Insurance Company is not of much consequence since the policy itself speaks. We are therefore accepting the contention of the Insurance Company that the policy is limited as per passenger at Rs. 15,000/-.
4. Counsel appearing for the claimants submitted that Insurance Company may meet the entire liability and recover the same from the owner and driver. We are of the view since liability is limited Insurance Company cannot be directed to meet the entire claim for which they have not entered into any contract with the owner of the autorikshaw. This legal position has been settled by a recent decision of the Supreme Court in New India Assurance Co. Ltd. v. CM. Jaya & Ors., JT 2002 (1) SC 198. The Court examined the question whether there is any conflict between the decision in New India Assurance Co. Ltd. v. Shanti Bai, JT 1995 (2) SC 95 and Amrit Lal Sood v. Kaushalya Devi Thapar, JT 1998 (2) SC 484. After considering all aspects of the matter the Apex Court held as follows:
"In the light of what is stated above, we do not find any conflict on the question raised in the order of reference between the decisions of two Benches of three learned Judges in Shanti Bai and Amrit Lal Sood aforementioned and on the other hand, there is no consistency on the point that in case of an insurance policy not taking any higher liability by accepting a higher premium, the liability of the insurance company is neither unlimited nor higher than the statutory liability fixed under Section 95(2) of the Act. In Amrit Lal Sood's case, the decision in Shanti Bai is not noticed. However, both these decisions refer to the case of Jugal Kishore and no contrary view is expressed."
Apex Court then held as follows:
"A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability can not be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the statute or the contract of insurance which is not permissible."
In view of the above mentioned authoritative pronouncement by the Apex Court we are of the view the contention raised by the claimants that the Insurance Company should meet the entire liability cannot be accepted. In view of the above mentioned circumstance we declare that the Insurance Company be made liable only for the amount insured as per B1, that is, Rs. 15,000/- per passenger. The balance amount due to the claimants be recovered from the owner and driver. We also find no reason to interfere with the contributory negligence fixed by the Tribunal. We therefore find no reason to entertain the appeals preferred by the Southern Railway. Those appeals are dismissed. Appeals preferred by the Insurance Company also disposed of accordingly. We appreciate the service rendered by Advocates Sri. M.C. Cherian and Smt. Asha Cherian at our request.