Gauhati High Court
Maj. Shailendra Kumar Pathak vs United India Insurance Co. Ltd. And Ors. on 11 August, 1995
Equivalent citations: 1996ACJ602
Author: S.L. Saraf
Bench: S.L. Saraf
JUDGMENT S.L. Saraf, J.
1. This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and order dated 30.10.1991 passed in the Motor Accident Claim Case No. 28 of 1989. The main ground of challenge is the awarding of very low sum by way of compensation for the injuries suffered by the claimants.
2. The facts of the case, in short, are as follows:
The claimant and his wife were riding the scooter No. MLK 5830 via Hopkinson Road to Laitumkhrah, Shillong, on 10.3.1989 and the same was knocked down by local taxi No. MLK 3373 coming from opposite direction. Both claimants suffered injuries and the scooter was also damaged. The claimants claimed a sum of Rs. 5,30,000 for the injuries suffered. The learned Tribunal only awarded a sum of Rs. 45,000/-as compensation on account of injury suffered by the claimant No. 1 and a sum of Rs. 25,000/- to the claimant No. 2. No award was made on account of damage suffered by the scooter. However, the Tribunal on consideration of understanding relating to the plea of limited liability only allowed a total of Rs. 50,000/- by way of compensation to both the claimants.
3. I have gone through the judgment and order dated 30.10.1991 and have carefully considered the discussion on issues and evidence and I find that the insurance company has not challenged the finding of the Tribunal nor has it filed any appeal before this court. The insurance company has accepted the finding of negligence of the taxi driver and has accepted the finding that the taxi which came from opposite direction was rashly driven with a high speed and caused the accident. They have accepted the finding that the accident was due to negligence of the driver of taxi MLK 3373.
4. The only question which has arisen for consideration is whether the compensation allowed was too little and unjustified for the injuries suffered by claimants. The claimant has been permanently handicapped and being a Major in the army he has been put in a low category rank and lost the scope of promotion up to the rank of Colonel. He could not walk without the stick and is still undergoing treatment. He has 20 years more in service and is deprived of further promotion. Rakesh Puri, CW 4, army doctor in Military Hospital, Shillong, on the records available in the hospital gave evidence in the matter before the Tribunal. It was deposed that the claimant No. 1 suffered compound fracture of tibia and fibula on the right leg. The said doctor opined that there is no certainty in the nature of fracture which the claimant suffered or as to regaining normal strength on the right leg. He is now in low medical category to recoup his physical fitness. According to the said witness the injuries suffered by claimant No. 1 could become a permanent disablement. The percentage of disability cannot be given at that stage, but deformity and pain still persist. The said doctor also gave evidence regarding the injuries suffered by claimant No. 2. According to the doctor, the claimant No. 2, wife of the claimant No. 1, suffered injury on her right arm. According to the doctor, both the said fractures are curable, but it may take a lot of time and it may also become a part of disability.
5. Appreciating the evidence and the depositions made by the military doctor of the hospital before the Claims Tribunal, I hold that the amount granted by way of compensation of Rs. 45,000/- to a Major of the army who may be permanently disabled and who has lost his career in the army, the award granted is very little. The said Major has still 20 years to go in the service in the army but due to such accident he shall be unable to get himself promoted to higher rank and status, thereby he will be deprived of the increment of pay which he would have got for next 20 years.
On consideration of all the above facts including the loss of earning, constraint on promotion, injuries and agony suffered, I think and I feel a sum of Rs. 2,00,000/-should be awarded to the claimant No. 1 by way of compensation. Meena Pathak, claimant No. 2, shall also be entitled to a sura of Rs. 50,000/- on account of her injuries. Lastly, I find no justification in not granting the claim of Rs. 4,230/- for damage caused to the scooter of the claimant. I allow the said claim of Rs. 4,230/-.
6. The counsel for the insurance company had pleaded limited liability to the extent of Rs. 50,000/- and the Divisional Manager of the insurance company deposed before the Claims Tribunal that the liability of the insurance company was limited to Rs. 50,000/- only. The contention of the counsel for the claimant that the question of limited liability was not raised in the pleadings was rejected and the Claims Tribunal allowed the insurance company to plead limited liability and held that though no specific issue had been framed with regard to the limited liability, the Tribunal is duty-bound to consider it. It held in favour of the insurance company that since it accepted the evidence of Divisional Manager that no extra premium for increased liability to third party risk was paid, the liability of insurance company is limited to Rs. 50,000/- only. On consideration of the above facts and contentions and also a copy of the certificate of insurance, I find that the contention of the insurance company is totally unjustified. The certificate of insurance company sets out 3 limits under the heading 'Limits of Liability'. Under limit No. 3, the liability is limited to Rs. 50,000/-. The said limit reads as follows:
Limits of the amount of the company's liability under Section II-1 (ii) in respect of any one claim or series of claims arising out of one event: Rs. 50,000/-.
Limit Nos. 1 and 2 do not speak of any maximum limit though limit No. 2 speaks of such amount as is necessary to meet the requirements of Motor Vehicles Act, 1939. Limit No. 1 has not been restricted to any maximum amount. It reads:
Limit of the amount of the company's liability under Section II-1 (i) in respect of any one accident:
Opposite to the said limit no maximum amount has been written as in the case of limit No. 3, which only means unlimited liability.
Section II-(1) (i) & (ii) of the policy is set out hereunder:
(1) Subject to the limits of liability the company will indemnify the insured against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of-
(i) Death or bodily injury to any person caused by or arising out of the use (including loading and/or unloading) of the motor vehicle.
(ii) Damage to property caused by the use (including loading and/or unloading) of the motor vehicle.
The said provisions of the insurance policy properly interpreted mean that unless the policy specifically limits the liability of the company, the insurance company becomes legally liable for unlimited liability.
Section II-I (i) does not restrict the liability of the company to Rs. 50,000/-only. On the contrary, the said Section II-I (i) read with the limit No. 1 shown in the certificate of insurance issued on 11.3.1985 numbering 130101724/6/01306 relating to vehicle No. 3373 shows that there was no limit in this policy and the policy was an unlimited liability policy. The said policy as a whole was a comprehensive policy and the insured has paid the full amount of comprehensive policy. The insurance company, however, can always limit its liability under Section II-I (i) and (ii) but the said policy does not show it is a limited liability policy, on the contrary, it shows that it is an unlimited liability policy, a sum of Rs. 906.95 was paid as extra premium.
7. The deposition of the Divisional Manager of the insurance company is factually incorrect. The Divisional Manager has deliberately tried to mislead the Tribunal and dishonestly concealed the facts of charging of the extra premium for increase of third party limits both under Sections II-I (i) and II-I (ii) of the policy. The insurance company specifically added the extra premium of Rs. 906.95 as the certificate of insurance shows unlimited (Sic. liability) for injuries falling under Section II-I (i) and Rs. 50,000/- for damage falling under Section II-I (ii).
8. In view of the aforesaid, I hold that the insurance company is bound to pay more than Rs. 50,000/- and its liability is not restricted to Rs. 50,000/- only as contended by the insurance company.
9. In the said premises, I direct the insurance company to pay a sum of Rs. 2,00,000/- + Rs. 50,000/- + Rs. 4,230; totally Rs. 2,54,230/- to the claimants within a period of 4 weeks from today.
With the above directions and observations, the appeal is disposed of. The insurance company is directed to pay a sum of Rs. 12,000/- by way of costs to the claimant. The said amount shall also be paid within 4 weeks from today.