Jammu & Kashmir High Court
United India Insurance Co. Ltd. vs Ghulam Ahmad Sanoo And Ors. on 30 March, 2000
Equivalent citations: 2001ACJ1357, AIR2000J&K115, AIR 2000 JAMMU AND KASHMIR 115
JUDGMENT Syed Bashir-ud-Din, J.
1. Motor Accident Claims Tribunal, Anantnag (the District and Sessions Judge) awarded compensation of Rs. 2,40,000/- with 6% interest less by the amount paid by way of interim relief w.e.from the date of institution of the claim on 15-3-1980 till the amount is deposited in the Court with condition that half the amount of interest awarded shall be recovered from the owner of the vehicle respondent No. 3. This award is under challenge in this appeal filed by the United India Insurance Co., the insurer.
2. The facts necessary for our purposes briefly stated are that one Mohammad Yaqoob Rather, a Lecturer in Regional Engineering College, Srinagar, died due to vehicular accident on 4-11-1979 at Village BuchrooTehsil Kulgam, when he was hit by Vehicle bearing Registration mark and number JKB-225 driven rashly and negligently by respondent No. 1. The vehicle is alleged to have been under subsisting Insurance on the above date of accident and the Insurance policy is stated to be issued by the Appellant United India Insurance Co. It merits to be noted that despite the accident having taken place on 4-11-1979, the claim petition was decided only on 16-3-1998, after lapse of over 18 years. The victim in thirtees is succeeded by his four daughters, two sons, widow and mother, though mother died subsequently. The claim was initially lodged with Motor Accident Claims Tribunal, Srinagar, but subsequently with the establishment of Motor Accident Claims Tribunal at Headquarters, this petition was passed on to the Tribunal at Anantnag in June, 1988. After framing the issues, allowing parties to lead evidence, recording parties evidence and hearing the arguments, the Claim Tribunal awarded in all compensation of Rs. 2,40,000/- after applying a multiplier of 12 to the loss of dependency to the claimants and on establishment of the average age to which the victim would have lived/the period claimants would have depended on the deceased, the lone bread earner of the family.
3. The appellant's counsel assails the impugned order and award of compensation on various counts. To begin with the counsel contends that the appellant Insurance Co. (respondent No. 5 before M.A.C.T.) is not at all liable for the reason that no subsisting Insurance policy issued by the appellant covered the accident in question and death to the third party as in this case. The claimants have not proved that the vehicle in question was actually covered by any Insurance. The claimants cannot be Indemnified for death of the victim Mohammad Yaqoob Rather, as claim liability based on Insurance cover issued by the respondent No. 5, is not at all proved. The counsel further submits that if for a moment the appellant Co. is liable, then the liability of Insurance Co. to third party risk as in this case was only to the extent of Rs. 25,000/- under the Motor Vehicles Act of 1939. in so far as the Act of 1939 was applicable on the date of accident. The amending Act which deleted the above-said limited liability of Insurance Co. in respect of the third party, was not in force on the date of accidents, therefore, at the best the liability of the Insurance Co. is to the extent of Rs. 25,000/-.
4. The counsel for claimant/respondents submits that Tribunal has on appreciation of evidence and evaluation of facts and circumstances of the case come to the conclusion that respondent No. 5 as the Insurer, was liable as the vehicle as also the accident in question was covered by Insurance policy, issued by it. The subsistence of Insurance on the material date was found by the Tribunal after referring to the facts and circumstances of the case and case law on the subject. The appellant's contention to the contrary is not based on any evidence. Instead it is only an attempt to shift the burden of proof which clearly lay on the Insurance Co. After the claimants placed sufficient facts and material on records to show that the vehicle was covered by the Insurance, it was for the Insurance Co. to produce and place before the Court the Insurance policy covering the vehicle in question. The counsel further canvasses that the liability of the Insurance Co.-appellant, is unlimited. The petitioner cannot escape the liability of being saddled with awarded compensation on death of the victim on a hypertechnical ground, moreso, when the very purpose of this beneficial piece of legislation is subverted by such a narrow hypertechnical construction. He also refers to the fact situation and circumstance on record that the deceased, a Lecturer in REC, who was at the threshhold of his career was succeeded by four daughters and two sons, all minors, a widow and a widowed mother. The deceased was the sole bread earner of the family.
5. TheTribunal raised specific issue as to whether the offending vehicle was Insured with United India Insurance Co. The Tribunal on analysis of evidence and after weighing the facts and circumstances of this case, came to the conclusion that the vehicle was insured with respondent No. 5, the United India Insurance Co. On examination of the matter. It is seen that the burden of proof of this issue is on the Insurance Co.-appellant. The witness Mohammad Khalil, Incharge, United India Insurance Co. at Anantnag has been examined by parties. It is in his deposition that the Insurance policy/certificate with No. and details given in the claim petition is issued to Islamabad Transport Co. by the appellant-Insurance Co. and premium of Rs. 587/- stands received in cash by the Insurance Co. on 30-12-78, thereby, indicating validity and subsistence of the Insurance policy w.e.f. 30-12-1978 to 29-12-1979. It is also in his evidence that as record of the Insurance Co. is destroyed every five years, so Company's record in this behalf cannot be produced in Court. It is also in his evidence that at Sr. Nos. 54 and 55 of the document produced by the witness on 26-11-1997, (which document appears record of receipts, cover note/policy, name of the insured, etc.) are the details of policy about the offending vehicle taken by Islamabad Transport Union, notwithstanding, that registration mark and number and chasis No. of vehicle are not entered in records. No. and date of the Insurance policy and Insurance Certificate is mentioned as 45002/1/24 and 289985/45002/24/6/00/33778 0071/78 in the relevant column of prescribed claim petition right from the date the petition is presented before the Motor Vehicles Claims Tribunal in 3/80. The same No. and date of policy and certificate is repeated even in amended claim petition after the United India Insurance Co. has been arrayed as respondent. The Insurance cover/policy effective from 30-12-1978 to 29-12-1979 covering the vehicle in question with third party risk covered has not been specifically denied in written statement, though denial in omnibus term is there. Once the oral and documentary evidence led by appellant is appreciated in the context of overall evidence, relevant material, facts and circumstances of this case, it emerges from record that the onus of showing that the vehicle was not insured or that the cover note/insurance policy/insurance certificate covered some other vehicle or that the Insurance Co. did not issue the policy/certificate mentioned in the application shifted on to the insurer, here United India Insurance Co. respondent No. 5. The Insurance Co. having failed to discharge onus of proof thereto, an adverse inferences can be drawn against the Co. that the Insurance policy/insurance certificate subsisted on the material date and that omnibus denial of Co. thereto, is untrue. (See 1993 Acc CJ 897 and 1994 ACJ 630).
6. In Bhalchandra N. Donge v. Mohan G. Butala, (1995) 2 ACC CJ 898) (Bombay), a Division Bench of the Court observed :--
".....Next question, which calls for our consideration, is whether the respondent No. 4, insurance company, is liable. In their application for compensation, the appellants have stated that the truck was Insured with the respondent No. 4 under the Cover Note No. 60585 for the period from 26-12- 1979 to 25-12-1980. In his written statement, respondent No. 2 stated that the correct cover note number is 60588. The respondent No. 2, however failed to produce the insurance policy. The respondent No. 4 contended that the truck was not insured at all. The appellants produced material on record to show that at the relevant time, the truck was insured with the respondent No. 4.......... The respondent No. 4 has not alleged or proved that it never issued a cover note/policy of such number. We have, therefore, no hesitation to accept the appellants' case that the truck was insured with the respondent No. 4 at the time of accident........"
In (1996) 1 ACC 515, 518 All, where. Insurance Co. failed to produce the policy or cover note or show that it was issued for a different vehicle and further that cover note of given number was not issued by it, it was held that claimants case that the vehicle was insured at the relevant time has to be accepted.
7. Obviously, no fault can be found with the finding of the Tribunal that the vehicle was insured with the United India Insurance Co. consequently, the contra contention of appellant's counsel thereto has to be and is rejected.
8. Next the contention that the Insurance Co., has a limited liability to indemnify the heirs of the deceased in so far as third party risk is statutorily limited in terms of Section 95(2) of the MV Act of 1939 as applicable to this case, cannot be also accepted for what follows thereafter.
9. The accident took place on 7-11 -1979, when Motor Vehicles Act of 1939 was in force. Section 95(2) of the Act of 1939 provided limited liability for third party risk. Then Motor Vehicles Act of 1988 repealed it with effect from 1-7-1989. Under Section 147 of Act of 1988 liability to third party risk was again limited. However, statutory limit under Section 95 (New Section 147 of the Act) is not absolute. The section does not place an embargo on the Insurance Co. from covenanting or issuing insurance policy/ cover note/insurance certificate in excess of statutory limit. In the context of beneficial legislation, like Motor Vehicles Act, the onus lies on the Insurance Co. not only to plead limited liability, but also prove it by placing on record the Insurance policy or other material/contemporary record/documents having a bearing on the question. The Insurance Co. has not led any evidence on this aspect of the case.
10. On, appreciation of evidence including the statement of Mohammad Khalil, witness and weighing the preponderance of probabilities, it is seen that the vehicle was insured by the Co. and insurance policy covered the third party risk, but not necessarily within confines of statutory limits. The liability of Insurer can be unlimited. It is for the Insurance Co. to prove its limited liability, which the Co. has failed to do.
11. In United India Insurance Co. Ltd. v. Shamsher Singh, (1994) 1 ACC CJ 366, this Court held :--
"5,... There is no specific plea raised about company's limited liability, nor can any resort be had in such a situation to provisions of Section 95 to show the extent of liability. In such matters insurance policy is the best and only guide ......
6. ... The admitted position is that appellant Company had failed to produce the policy of Insurance before Tribunal to show that its liability was limited to 50,000/-. Nor did it lead any evidence on this aspect. So much so, that the question of Company's liability did not form any issue before the Tribunal. Therefore, I feel no reluctance in holding that liability of company was unlimited. The challenge posed by appellant should naturally fail to that extent. . ."
12. This position is again reiterated in Oriental Insurance Co. Ltd. v. Narinder Kour, (1997 Kash LJ 217: (AIR 1998 J. & K. 17). The appellant Go's, counsel cited 1993 Srinagar LJ 285 : (AIR 1994 J & K 1) with prayer to uphold his submission that the Co. cannot be burdened with liability in excess of limit laid down by law. However, this authority, New India Assurance Co. v. Hurmat Begum, turns on its own facts and even so, the Court has observed :--
". . . .There can be no dispute with the preposition that Insurance Company's liability should be regarded as unlimited where it fails to raise any plea about its limited liability and does not produce any policy on record in support thereof. But this cannot hold true where the original policy is placed on record. In such a case, record should be allowed to speak for itself and it would be grossly unfair if the company's liability is held to be unlimited in the face of the original policy containing limits of the risk covered by the Insurer."
13. In our case, neither the policy nor certificate of Insurance, nor any other record is made available, wherefrom the appellant Co's, limit of liability can be indicated. There is not even an iota of evidence/material/ documents to support the contention of the counsel that the Company's liability under the contract of Insurance and indemnity, is limited,
14. In Union of India v. Ashok Kumar, LPA No. 29 of 1996, 1997 Srinagar LJ 1: (AIR 1997 J & K 83), a Division Bench of this Court observed :--
". . . . .18. So the law laid down by the Supreme Court is that once the matter is pending in a Court and law is amended, the law shall be applicable, as it existed on the date on which the matter is decided either by a Court subordinate to the High Court or High Court in appeal."
15. Appellants counsel lastly contends that United India Insurance Co. was added as party on 15-4-1997, when in fact the incident took place on 4-11-1979, and on this date of occurrence, Motor Vehicles Act of 1939, was in force. The application for compensation had to be made within six months of the occurrence of the accident under Section 110-A of the Motor Vehicles Act of 1939 (Section 166 of Motor Vehicles Act, 1988), therefore, the claim petition for compensation is time barred.
16. The counsel for respondents-claimants, is countering the argument on submission that six months period is prescribed for presentation of application for compensation and not for impleadment of a party like United India Insurance Co., substituted for a wrongly arrayed Insurance Co. with the occurrence of accident, starts limitation period, only for preferring claim petition under Motor Vehicles Act, before the Motor Vehicles Tribunal, and not for impleadment of a party, may be insurer.
17. In Chandrika Prasad v. Assistant Engineer, III Northern Railway, Allahabad, AIR 1984 All 101 a Division Bench of the Court held that, where an application for compensation is filed within time without tmpleadlng the other parties in the application for compensation, but later, on amendment, the names of respondents are shown in the prescribed form of application, claim application cannot be rejected by holding that the application for compensation was barred by time.
18. Section 110-A, M.V.A. only prescribes a period within which the Tribunal may entertain the claim for compensation and it does not prevent the Tribunal from issuing notice to an added party likely liable to pay compensation. (See AIR 1970 Bombay 337 and AIR (1976) 1 Kant 1017).
19. The Section 166(3) is repealed by Section 53 of M.V. (Amendment) Act, 1994, which has the effect of deleting the period of Limitation for preferring claim petition. The object of repealing of Sub-section (3) is to save victims of the accident(s) or their heirs/ claimants from grave injustice caused due to rejection of their claim on ground of limitation. Once this object in the backdrop of Motor Vehicles Act being a beneficial piece of Legislation, is considered in the context of repeal of Sub-section (3) of Section 166 of Motor Vehicles Act of 1988, it is manifest that the claim petition cannot be dismissed on the ground that it was barred by limitation under Section 110(A) of Act of 1939 (Section 166(3) of Act of 1988). In this sense the amendment is retrospective.
20. In Dhana Lal v. D.P. Vijayvargiya.
AIR 1996 SC 2155, the Apex Court while analysing the effect of repeal of Sub-section 3 of Section 166 of Motor Vehicles Act of 1988, on pending claim petition, held that the claim petition which has been filed and is being pursued before the Tribunal. High Court or the Supreme Court, cannot be thrown out on the ground of limitation. The Court further laid :--
". . .. 8. The matter will be different if any claimant having filed a petition for claim beyond time which has been rejected by the Tribunal or the High Court, the claimant does not challenge the same and allows the said Judicial order to become final. The aforesaid Amending Act shall be of no help to such claimant. The reason being that a judicial order saying that such position of claim was barred by limitation has attained finality. But that principle will not govern cases where the dispute as to whether petition for claim having been filed beyond the period of twelve months from the date of the accident is pending consideration either before the Tribunal, High Court or this Court. In such cases, the benefit of amendment of Sub-section (3) of Section 166 should be extended."
21. No other point has been raised before this Court.
22. In result, for the aforesaid reasons, the appeal merits dismissal and is accordingly dismissed.