Patna High Court
Oriental Insurance Co. Ltd. vs Bhagirath Bhagat And Ors. on 17 April, 1997
Equivalent citations: II(1998)ACC566, 1999ACJ1567
Author: P.K. Deb
Bench: P.K. Deb
JUDGMENT P.K. Deb, J.
1. This appeal has been preferred against the judgment and award passed by the Judicial Commissioner-cum-M.A.C.T. in Compensation Case No. 82 of 1984 whereby and whereunder compensation to the tune of Rs. 59,000 with interest at the rate of 12 per cent per annum from 3.11.1984 had been awarded and the amount was directed to be deposited with interest within three months next, in failure of which interest had been enhanced to 18 per cent per annum till the date of recovery.
2. One Shanti Devi, wife of claimant-respondent No. 1, Bhagirath Bhagat and the mother of the other minor claimants-respondents met with accident on 14.8.84 while she was travelling in a Trekker bearing No. EPN 8967 from Lohardaga to Ranchi. On the way, the accident took place. Shanti Devi sustained injuries and died on the spot. Shanti Devi was managing a business of her own of kolhu in the name and style of Power Ghani Tel Udyog and she was having an income of Rs. 1,000 per month. After the accident, an F.I.R. was also lodged vide Kuru P.S. Case No. 59 of 1984. Compensation was claimed to the tune of Rs. 2,50,000 but on consideration of the materials on record, the learned Tribunal found that Rs. 59,000 would be the proper and just compensation in the nature and circumstances of the case and as such allowed the compensation case with the award as mentioned above.
3. Mr. A.K. Sahani, appearing on behalf of the insurance company submitted that although at the relevant time the vehicle was insured with the appellant insurance company but its liability was limited as per Section 95 (2) (b) of the old Motor Vehicles Act. It was a passenger carrying vehicle and its liability per passenger was limited to Rs. 15,000 only. The liability of Rs. 15,000 had already been paid by the insurance company and as such according to Mr. Sahani no further amount can be levied on the insurance company.
4. This point of statutory liability has been considered by the learned Tribunal and as no insurance policy was produced either from the owner's side or by the insurance company, it was held that there was no possibility for the Tribunal to hold that the liability was limited. In this appeal also, the insurance policy had not been produced or filed. In view of that position, relying on National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC), the learned Tribunal has rightly rejected the plea of the insurance company.
5. The next point raised by Mr. A.K. Sahani is that on the date of accident, the offending vehicle was carrying more passengers for which permit was not issued to it and as such when there is violation of the permit condition, the insurance company cannot be fastened with the liability. He has referred to Section 96 (2) (b) (i) (c) in support of his contention, wherein it was held that the insurance company cannot be fastened, if the vehicle has been used for a purpose not allowed by the permit under which the vehicle is used, where a vehicle is a transport vehicle. According to him, carrying of more passengers in the transport vehicle is a violation of permit and can be held to be used for the purpose not allowed by the permit.
6. This matter has been dealt with by this Court in 1990 ALT 125 and held that violation of conditions of the permit to the extent of carrying of more passengers cannot be said to be using of the vehicle against the permit for which it was allowed. For carrying of more passengers the vehicle owner and the driver may be held liable for penal action under the Motor Vehicles Act itself but for that alone the indemnifying liability of insurance company in respect of claim cases cannot be denied. Hence, I do not find any force in this appeal.
7. Mr. R.K. Prasad submitted that the amount which has been awarded is too low and this Court must consider to enhance the amount of compensation.
8. After the amount has been awarded, it becomes in the form of a money decree and unless there is any cross-appeal or cross-objection, said decree cannot be altered suo motu by the court in the appeal filed by the adverse party. Hence, this contention of Mr. R.K. Prasad cannot be entertained. Although, in my view, the amount assessed for compensation is on the lower side.
9. Thus, when the appellant being the insurer, it is liable to pay the whole of the compensation with interest at the rate of 12 per cent per annum.
10. It appears that Rs. 15,000 has already been paid and in this appeal Rs. 25,000 has been deposited as statutory liability under Section 173 (1) of the Motor Vehicles Act. Those dates of deposit should be construed for the purpose of calculation of compensation and the amount in deposit should be disbursed immediately in favour of the claimants-respondents. If the balance amount is not paid interest at the rate of 12 per cent per annum as mentioned above within two months next from this date then the insurance company shall have to pay 18 per cent per annum interest on the total amount of compensation to be calculated from the expiry date of pre-emptory period till the date of realisation.