Rajasthan High Court - Jaipur
United India Insurance Company Ltd. vs Tahir Mohammed And Ors. on 23 February, 1996
Equivalent citations: 2(1996)ACC418
JUDGMENT B.R. Arora, J.
1. This miscellaneous appeal and the cross-objections are directed against the award dated 24.8.91 passed by the Judge, Motor Accident Claims Tribunal, Rajsamand, by which the learned Judge of the Tribunal awarded a sum of Rs. 2,55,000/- as compensation to the claimants and dismissed the remaining claim of Tahir Mohammed and others for the remaining amount.
2. Tahir Mohammed filed the Claim Petition No. 169 of 1991 for the award of compensation amounting to Rs. 10,80,000/-. The case of the claimants, as set-out in the claim petition, is that he was the driver of truck No. RRJ 3819. He parked the truck on the Kaccha side of the road. A truck bearing No. RSM 1339 came from Udaipur side. Truck No. RSM No. 1339 was being rashly and negligently driven by its driver Dunga and it dashed against the stationary truck of the claimant. The truck, also, hit the claimant, due to which he fell down on the road. The truck crossed over his legs, due to which his left leg was completely smashed and he received fracture on the right leg. The left leg, which was completely smashed, was ultimately amputated. The truck No. RSM 1339, after hitting the truck of the claimant, fell in the ditch and three persons, viz., Munga-the driver of truck No. RRJ 3819, Cleaner Asha Ram and Ram Lal, died on account of this accident. On account of amputation of the left leg and fracture on the right leg, the claimant became permanently disabled and cannot do the job of driving the vehicle. He was getting the emoluments of Rs. 2,000/- per month as the driver and since, now, with one leg he cannot drive the vehicle, therefore, he has suffered the loss of income of Rs. 9,60,000/-. Rs. 1,00,000/- were claimed on account of mental agony and physical pain and Rs. 20,000/- were claimed against the medical expenses. The claim petition was not contested by the owner of the vehicle and was contested only by the Insurance Company. The learned Judge of the Tribunal, after trial, by his Award dated 24.8.91, awarded the compensation as stated above. It is against this award that the appellant Insurance Company has preferred this appeal. Aggrieved of the inadequate and lesser amount of the compensation, the claimant, also, filed cross-objections.
3. It is contended by the learned Counsel for the appellant-Insurance Company that the amount of compensation awarded by the learned Judge of the Tribunal is highly excessive and the wrong multiplier has been applied. While awarding the compensation the learned Judge of the Tribunal has not considered the family status of the claimant and awarded the exorbitant amount of the compensation. It is, also, contended by the learned Counsel for the Insurance Company that the liability of the Insurance Company was limited only to the extent of Rs. 1,50,000/- but this aspect of the case has not been considered by the learned Judge of the Tribunal. Learned Counsel for the claimant/cross-objector, on the other hand has submitted that the amount of compensation awarded by the learned Judge of the Tribunal is much on the lower side and the claimant placed on record the evidence which clearly shows that the award passed by the learned Judge of the Tribunal is much on the lower side.
4. I have considered the submissions made by the learned Counsel for the parties.
5. Though a number of grounds have been taken by the learned Counsel for the Insurance Company challenging the award passed by the learned Judge of the Tribunal but the Insurance Company can raise only those grounds which are available to it under Section 96(2) of the Motor Vehicles Act. Since no appeal has been filed by the owner or the driver of the vehicle, the only ground available to the appellant Insurance Company is regarding the liability of the Insurance Company to indemnify the claim.
6. The insurance policy has not been placed on record. Issue No. 3, which was struck out by the learned Judge of the Tribunal, relates to the liability of the Insurance Company to indemnify the claim. No evidence was produced by the Insurance Company to prove this issue. The learned Judge of the Tribunal, therefore, held that as no document has been produced by the Insurance Company to prove this issue which may absolve the Insurance Company from its comprehensive and unlimited liability, the Issue No. 3 is decided against the Insurance Company. Since the burden of this issue was on the Insurance Company, which failed to discharge this burden by leading evidence, the Insurance Company was, therefore, rightly held liable by the Tribunal to indemnify the whole of the claim. It was the duty of the Insurance Company to place on record the insurance policy to assert its defence regarding its liability. In the absence of any material or evidence available on record, it cannot be said that the liability of the Insurance Company was limited and, therefore, the findings arrived at by the learned Judge of the Tribunal that the Insurance Company is liable to indemnify the whole of the claim, does not require any interference.
7. In National Insurance Co. Ltd. v. Jugal Kishore and Ors. 1988 ACJ 270 : I (1988) ACC 327 (SC), the Insurance Company, without placing any insurance policy on record, argued that the liability of the Insurance Company is limited only to the extent provided under Section 96(2) of the Act. Repelling this argument, the Apex Court held as under:
We accordingly "wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in the claim petition that its liability is not in excess to the statutory liability, it should file a copy of the insurance policy alongwith its defence. xxx xxxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxxx xxxx xxx Filing the copy of the insurance policy is not only be the short cut to avoid the litigation but it, also, helps the Court in doing the justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly, cannot be over emphasised.
8. Since neither the insurance policy was filed by the Insurance Company nor any other evidence was produced by it to prove Issue No. 3, therefore, the learned Judge of the Tribunal was justified in deciding Issue No. 3 against the Insurance Company and holding the Insurance Company liable to indemnify the whole of the claim.
9. The next question which requires consideration is regarding the adequacy of the compensation awarded by the learned Judge of the Tribunal. After considering the evidence available on record, I am of the opinion that the compensation awarded by the learned Judge of the Tribunal cannot be said to be, in any way, on the lower side and it is most adequate in the facts and circumstances of the case.
10. In the result, I do find any merit either in the appeal or in the cross objection filed by the claimant. The appeal and the cross-objection are, therefore, dismissed.