Himachal Pradesh High Court
New India Assurance Co. Ltd. vs Kehro Devi And Ors. on 13 November, 1996
Author: M. Srinivasan
Bench: M. Srinivasan, P.K. Palli
JUDGMENT M. Srinivasan, C.J.
1. The appellant is the assurance company. It is aggrieved by the finding of the Tribunal that it is liable to pay the entire compensation amount awarded in favour of the claimants jointly and severally with the owner of the vehicle. The contention of the appellant is that as per the policy, the liability was limited to Rs. 5,000/- in the case of one passenger. Though the policy was not produced before the Tribunal, it is contended before us that the law as it stood at that time was laid down in Hamirpur Cooperative Transport Society Ltd. v. Kaushalya Devi 1983 ACJ 70 (HP) and was to the effect that in the absence of insurance policy and without pursuing the same the Tribunal could not fix any liability higher than that mentioned in Section 95 of the Act. Admittedly, when the award was passed by the Tribunal, the maximum liability was only Rs. 5,000/-.
2. During the pendency of the appeal, the appellant has filed C.M.P. No. 3861 of 1985 for marking the policy as additional evidence in the appeal. We are of the opinion that the policy is a necessary document for the purpose of disposing of the appeal in just and proper manner. Hence, we allow the petition and admit the policy, which is marked as Exh. C-l, as additional evidence in appeal. It is seen from the policy that the liability has been fixed at Rs. 5,000/- for a passenger.
3. Hence, contention of the appellant is accepted and the award is modified insofar as the appellant is concerned by reducing its liability to Rs. 5,000/-. The remaining part of the award passed against the owner of the vehicle and the driver will stand.
4. The memorandum of cross-objection is not maintainable inasmuch as this appeal is filed only by the assurance company and not by the owner of the vehicle or the driver. It has been held recently by a Division Bench of this Court in National Insurance Co. Ltd. v. Rukmani Devi F.A.O. (MVA) No. 88 of 1988 with Cross-Objection No. 24 of 1989, to which one of us was a party (P.K. Palli, J.) that such cross-objection is not maintainable. The Division Bench has rendered its judgment on 4.9.1996. They placed reliance on a judgment of the Kerala High Court in Oriental Insurance Co. Ltd. v. Sreedhar-an I (1996) ACC 429 and that of the Madras High Court in United India Insurance Co. Ltd. v. M.R. Subramanian 1996 ACJ 1260 (Madras). We agree with the view expressed by the Division Bench and hold that the cross-objection in this case is not maintainable. Hence, the cross-objection is dismissed. The appeal is allowed to the extent indicated above. There will be no order as to costs.
C.M.P. No. 325 of 19965. This petition is unnecessary as the petition for additional evidence is already on file as C.M.P. No. 3961 of 1985. We have allowed the said application by our order in the appeal. Hence, this petition is dismissed.
6. The appellant would be entitled to refund of the amount deposited in excess over and above the amount now awarded, along with interest thereon. The amount may be paid to the appellant.