Madhya Pradesh High Court
New India Assurance Co. Ltd. vs Madhya Pradesh State Road Transport ... on 7 December, 1985
Equivalent citations: [1988]64COMPCAS309(MP)
JUDGMENT T.N. Singh, J.
1. This is an insurer's appeal. The first respondent in this case is the owner of the affected motor vehicle who was also the claimant in respect of the damage caused to the vehicle. Indeed, respondent No. 2 was also a claimant in respect of compensation for injuries caused to his person in the course of the accident. He was the driver of the vehicle which was damaged in the accident. The third respondent is the owner of the offending vehicle against whom the award is passed.
2. The appellant's counsel, Shri Dubey, has made a short submission, relying solely on the provisions of Section 95(2)(d) of the Motor Vehicles Act, 1939, as it stood at the relevant date in 1977, when the accident took place. Counsel submits that the liability of the insurer by virtue of the said provision is statutorily limited to a sum of Rs. 2,000 and, as such, the Tribunal erred in law in holding the insurer jointly liable with the owner of the offending vehicle for discharging the entire liability under the award, which was made for a sum of Rs. 21,000. I have no hesitation in upholding the contention as the mandate of Clause (d) of Section 95(2) is clear, obvious and peremptory, admitting of no exception. Shri Jain has drawn my attention to Sub-section (5), which, in my opinion, has no relevance to the issue agitated in this appeal. My attention is drawn by Shri Dubey to the insurance policy, which is on record of the trial court, to which a reference also is made in the award, for submitting that even thereunder, according to the terms of the policy, the liability of the insurer was limited by the Act. That is so. I have perused the policy, which expressly limits the insurer's liability to " such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939". That being the position, the objection of Shri Jain, founded on Sub-section (5), vanishes into thin air.
3. It is also pointed out that a sum of Rs. 1,000 is awarded to respondent No. 2 against his claim for injuries to his person. However, the claim is not contested by Shri Dubey and I see no reason why the liability of the insurer as respects this amount should, in any way, be modified.
4. In the result, this appeal succeeds and is allowed with the direction that the award stands modified as respects the insurer's liability, who is required to satisfy the liability in respect of the award to respondent No. 2 in full and in part only to the extent of Rs. 2,000 as against respondent No. 1. There shall be no order as to costs in this appeal.
5. After the judgment has been dictated, Shri Mittal has appeared for pleading the case of respondent No. 1. His submission is three-fold. Firstly, it is submitted that no reference can be made to the insurance policy as it has not been formally proved. I see no merit in this contention for several reasons. Firstly, because Shri Mittal himself relied on the policy to enforce the liability of the insurer to satisfy in full the claim. Secondly, because it was well within the jurisdiction of the Tribunal to accept in evidence the insurance policy, dispensing with formal proof inasmuch as Section 110C authorises the Tribunal to adopt such a procedure, which contemplates "such summary procedure" to be followed by the Tribunal " as it thinks fit". Thirdly, because Section 58 of the Evidence Act itself dispenses with formal proof in a case when a fact is admitted, and, in the instant case, as alluded, the owner himself having invoked the insurer's liability under the policy, the policy must be deemed to have been admitted by the owner.
6. The second contention of Shri Mittal is based on the provisions of Section 96(4) of the Act and he has cited case-law. The provision is extracted below:
"(4) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would, apart from the provisions of this section, be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person."
7. I have no doubt about the purport of the above provision and indeed the case-law cited does support my view. I entertain no doubt at all about the position that a civil suit may also be instituted in respect of a claim as respects damage to property suffered by any person in the course of a motor accident and in that event, on the suit being decreed, the claimant decree-holder is enabled by Sub-section (4) to enforce the claim against the insurer and on the insurer satisfying such claim, the latter is entitled by virtue of Sub-section (4), to recover from the judgment-debtor (owner of the offending vehicle) the amount paid by him to the claimant in excess of his statutory liability, inscribed in Section 95 of the Act. I have no doubt at all that Sub-section (4) does not override the limit of liability of the insurer inscribed in Sub-section (2) of Section 95 of the Act. In Central Road Transport Corporation Ltd. v. Orissa State Commercial Transport Corporation, AIR 1985 Orissa 256; [1987] 61 Comp Cas 465, cited by Shri Mittal, it was held that, prior to the amendment of the Act in 1969, the owner of the property claiming compensation for damage to property arising out of an accident to a motor vehicle had the only remedy of approaching the civil court in common law and the civil court had jurisdiction to decide the Us, but the situation has changed and now the claim must be lodged with the Tribunal. But, in the event of the claim exceeding the limit of Rs. 2,000, the claimant can get the matter referred to the civil court for adjudication at his option. Therefore, the short question in this case is, if the option was not exercised earlier, at the trial stage, before the Tribunal, can the option be now exercised ? The answer to the question has to be a clear "No". That being the position, the second contention of Shri Mittal must fail as no option was exercised by the first respondent before the Tribunal and, consequently, the third contention that, even at this stage, the claim may be referred by this court to the civil court must also fail. It was well within the jurisdiction of the Tribunal to adjudicate on the claim as the option was not exercised by the claimant who had the right to exercise the option. The right cannot be exercised to the detriment of the insurer. It is not possible to hold the award wanting in jurisdiction and to entertain the claimant's prayer for adjudication of the claim by the civil court by setting aside the award.
8. Shri Mittal has also cited a decision of this court in R. Gopaldas v. Sardar Mahendrasingh [1984] MPLJ 537; AIR 1985 MP4; [1985] ACJ 103, as well as those in Banwarilal v. Vishnunarayan [1975] ACJ 40 (MP) and Manohar Singh v. Canara Motor and General Insurance Co. [1977] ACJ 280 (MP), but I do not read anything therein to support the contentions pressed by Shri Mittal. Indeed, in all the three cases, the decision merely was that the Claims Tribunal had jurisdiction to award compensation for loss of, or damage to, property. Another decision on which Shri Mittal has relied, is the case of Shyamlal v. New India Assurance Co. Ltd. [1979] ACJ 208 (MP), in support of the contention that the policy of insurance should have been proved and no reliance can be placed on the policy which was admittedly " produced " by the insurer. However, the decision does not support his contention and indeed, the insurer was faulted for not "producing" the policy to show its limited liability; and not for any other purpose. The decision in National Insurance Co. v. Narendra Kumar [1981] ACJ 93 ; [1983] 53 Comp Cas 669 (All), is also on the question of general burden of proof, which question, as alluded, as respects the policy, is not at all germane to this Us. However, a decision of the Delhi High Court in Sathyawati Pathak v. Hari Ram [1983] ACJ 424, is also relied on, because at para 32 of the report, reference to Shyawilal's case [1979] ACJ 208 (MP) and National Insurance Company's case [1981] ACJ 93, decided by this court, are mentioned. I have already examined those decisions and demonstrated that the contention canvassed does not find support in those decisions. I wonder how Pushpabai's case, AIR 1977 SC 1735, can at all be pressed into service, because it deals with the applicability of the doctrine res ipsa loquitur.
9. For the foregoing reasons, I am constrained to hold that the view I have already taken does not merit reconsideration.