Orissa High Court
The National Insurance Co. Ltd. vs Prasanna Kumar Mitra And Ors. And ... on 5 March, 1993
Equivalent citations: I(1994)ACC121, 1994ACJ963, 1993(II)OLR11
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. In the appear under the Letters Patent the judgment in Miscellaneous Appeal No. 164 of 1986 is assailed. The National Insurance Co. Ltd., (hereinafter referred to as the 'insurer') calls in question legality of the judgment of learned Single Judge on the ground that the entire liability has been erroneously fastened on it. The said appeal and Misc. Appeal No. 151 of 1986 are interlinked. Appellat in both is the insurer. Both have their matrix in Misc. Case No. 4 of 1982 filed by the legal representatives of one Narendra Kumar Khatei (hereinafter referred to as the deceased).
2. The background facts relevant for determination of the question whether the judgment of the learned Single Judge is correct are as follows :
On 11-10-1981 at about 5 p. m. one Narendra Kumar Khatei lost his life on account of an accident in which a truck bearing registration No. OSP 671 was involved. Prasanna Kumar Mitra is the owner of the vehicle and the vehicle was insured with the insurer. For the sake of convenience the owner is described as insured hereinafter. The widow of Narendra and his daughter and, parents lodged a claim Under Section 110A of the, Motor Vehicles Act, ,1939 (in short, the 'old Act') claiming compensation of Rs. 1,50,000/-. The Tribunal held that the total compensation payable was Rs. 1 lakh. However, it quantified the insurer's liability at Rs. 50,000/-, and held that the insured was to pay the balance. The insured questioned the conclusion and contended in M. A. No. 164 of 1986, that the policy having not been produced the entire liability should have been, fastened on the insurer. By the impugned judgment the plea was found favour with the learned Single Judge, who relying on a decision of the Apex Court is National Insurance Co. Ltd., New Delhi v. Jugal Kishore and Ors. : AIR 1988 SC 719, held that the insurer was to pay the entire compensation as the original police had not been produced. It is relevant to mention that the award was assailed by both the insured and the insurer. The former's appeal was numbered as Misc. Appeal No. 164 of 1986. whereas the latter's appeal was numbered as Misc. Appeal No. 151 of 1986. By order dated 14-3-1991, the learned Single Judge before whom Misc. Appeal No. 164 of 1986 was placed directed 1hat the said appeal was to be placed the next day for hearing along with Misc. Appeal No. 151 of 1986. It is not clear whether Misc. Appeal No. 151 of 1986 was heard along with M. A. No. 164 of 1986 the next day, but the order-sheet shows that further hearing in Misc. Appeal No. 164 of 1986 was completed and the appeal was disposed of that day. The judgment in Misc. Appeal No. 164 of 1986 is the subject-matter of challenge in the Letters Patent appeal. The parties do not dispute that Misc. Appeal No. 151 of 1986 was not disposed of that day. Since both the Misc. Appeals assailed the same, to avoid unnecessary complications both the appeals should have been heard and disposed of together, to avoid unnecessary complications. Be that as it may, at the request of the parties we have taken up both the Letters Patent Appeal and Misc. Appeal No. 151 of 1986 for disposal together. In the Letters Patent Appeal, the insurer has filed an application for accepting certain documents as additional evidence. We have considered the prayer. We do not consider it necessary to deal with those documents as additional evidence because of the view we propose to take. We, however, make it clear that the documents could be taken as additional evidence in view of their relevancy for a proper adjudication of the dispute
3. In support of the appeals, the learned counsel for the insurer has strenuously urged that non-production of the Policy it self will not fasten the liability on the insurer. The Supreme Court in Jugal Kishore's case only stressed on the duty of the insurer to produce the original policy or to annex a copy thereof to the defence, only where a specific plea has been taken by the insured that the liability of the insurer was beyond the limited liability. The learned counsel for the insured and the claimants, however, submitted that the position has been put beyond the shadow of doubt in the said case and therefore, the conclusion of the learned Single Judge is irreversible,
4. A preliminary objection was raised by the learned counsel for the insured about the maintainability of the appeal. According to him Section 110D of the old Act entitled the aggrieved person to lodge only one appeal in the High Court and therefore, when that power is once exercised, power of the High Court to hear and decide the appeal is exhausted and the Letters Patent do not create any right of appeal. It is further urged that the purpose of right of appeal envisaged Under Section 110D cannot be enlarged to enable another appeal being filed In the same forum viz. the High Court. Strong reliance is placed on two decisions of the Madhya Pradesh High Court reported in Vijayaraje Scindia (Rajmata) and Ors. v. Maharaj Nadhavrao Scindia and Ors. :1988 JLJ 86: and Uttam Singh and Ors. v. National Insurance Co. Ltd., and Ors. : AIR 1988 MP 199. The point needs careful consideration.
Under the Orissa High Court Order, 1948, Letters Patent of Patna High Court was made applicable to this Court. Clause TO of the Letters Patent of the Patna High Court which applies to our High Court reads as follows :
"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction ) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a Judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made on or after the first day of February, one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declared that the case is a fit one for appeal ; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided."
The aforementioned provision is in pari materia with Clause 15 of the Letters Patent of the Bombay High Court and similar provisions of the Letters Patent of different High Courts.
After a conspectus of various law as to how Letters Patent came into being with reference to various Charters issued by the King or Queen from time to time in England, provisions of the High Courts Act, 1861, Government of India Act, 1915, and Government of India Act, 1835 and other legislations whereby and whereunder the High Courts were constituted, the Supreme Court concluded that provision of appeal under the Letters Patent by a High Court applies to Article 226 of the Constitution, (See Umaji, Keshao Meshram and Ors. v. Smt. Radhikabai and Anr. ; AIR 1986 SC 1272). If was also held in the said decision that right of appeal, unless excluded by the Letters Patent of High Court or statutory provision, would continue to govern the matters before the High Court. An appeal is a continuation of the original proceeding and thus where an appeal is provided by Letters Patent, the same shall ensure to the benefits of the litigants. (See paragraph 109 of the aforesaid judgment). It is, thus, crystal clear that a right of appeal provided for under Clause 10 of the Letters Patent cannot be curtailed unless the same is excluded either by a Charter or by statutory provisions expressly or by necessary implication. Where an appeal is maintainable and is decided in terms of Section 110D of the old Act the same becomes a judgment within the meaning of Clause 10 of the Letters Patent. No finality is given to an appellate order and right of further appeal has not been curtailed in any manner in Section 110D of the old Act or under any other statute.
5. At this juncture, it is relevant to refer to Sub-section (2) of Section 104 of the Cade of Civil Procedure,1908. The said provision postulates that no appeal shall lie from any order passed in an appeal Under Section 104, Sub-section (1) of Section 104 stipulates that an appeal lies from the enumerated orders and save and otherwise expressly provided in the body of the Code and in law from time being in force, and from no other orders. Under Order 43, Rule 1, Code of Civil Procedure, appeals have been prescribed against enumerated orders under the provision of Section 104. The Madhya Pradesh High Court seems to have construed the expression "an appeal' appearing in Section 110D to mean that only one appeal was provided and that power of High Court is exhausted on filing of the appeal end the Letters Patent do not create any further right of appeal. A somewhat similar provision in Section 76 (1) of the Trade Marks Act, 1940 came up for consideration of the apex Court in National Sawing Thread Co. Ltd. v. James Chadwick & Bros. ; AIR 1953 SC 357. Section 76 (1) of the Trade Marks Act, 1940 reads as follows :
"Save as expressly provided in the Act, an appeal shall lie, within the period prescribed by the Central Government, from any decision of the Registrar under this Act or the Rules made thereunder the High Court having the jurisdiction."
With reference to Clause 1 5 of the Letters Patent of the Bombay High Court which is almost pari matetia with the provisions of Clause 10 of the Letters Patent of the Patna High Court which is applicable to this Court, the apex Court observed that Trade Marks Act does not provide or lay down any procedure for future conduct of that appeal in the High Court, and as such, the High Court while adjudicating upon such an appeal acts as a High Court like any other matter which comes before it in its original or appellate jurisdiction. It was observed that Section 76 conferred a right of appeal to the High Court and did not say anything else. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and such jurisdiction is exercised by a Single Judge, and his judgment becomes subject to appeal under Clause 15 of the Letters Patent, there being nothing contrary in the Trade Marks Act. Similar is the situation here. The position was clarified by a constitution Bench of the apex Court in South Asia Industries Private Ltd., v. S. B. Sarup Singh ; AIR 1965 SC 1442. In our considered opinion, therefore Letters Patent Appeal is maintainable in the appeal Under Section 110D of the old Act.
6. We may point that in Smt. Shanti Devi and Ors. v. General Manager, Haryana Roadways, Ambala and Ors., AIR 1972 P & H 65 (FB), and Scindia House, New Delhi v. The Municipal Corporation of Delhi through GM, DTC, Kuldip Lal Bhandan and Ors., AIR 1970 Delhi 37 (FB), the said Courts held that an appeal lies to a Division Bench in terms of Clause 10 of the Letters Patent from a Judgment of a Single Judge passed Under Section 110D of the old Act, as the case comes within the purview of the word 'judgment' within the meaning of Clause 10 of its Letters Patent. It was held that while hearing an appeal, the High Court acts as a Court and not as a Tribunal. In General Manager (H), Hazaribag Area of Central Coalfields Ltd., and Anr. v. Anjan Banerjee and Anr. : 1990 ACJ 550, it was observed by the Patna High Court that an appeal in terms of Sec, 110 of the old Act becomes a judgment within the meaning of Clause 10 of the Letters Patent and right of appeal provided under, Clause 10 cannot be curtailed unless the same is excluded either by a Charter or by statutory provision and since neither finality was given by an appellate order nor right of further appeal ourtailed in any manner in terms of Section 110D, the Letters Patent appeal was maintainable. We are in agreement with the view expressed by learned Judges of Patna High Court and with great respect differ from the view expressed by Madhya Pradesh High Court to the contrary. We hold the Letters Patent appeal to be maintainable.
7. The liability initially is that of the parson who is responsible for the accident. To get indemnification of any compensation which may become payable, the owner, who is also described as the insured, enters into an agreement with any insurance company like the appellant in the instant case, which for a premium undertakes to indemnity any liability that may be fastened on an insured. The insurance policy is the basic document from which the intention of the insured and the insurer is gathered. It shows the extent of liability of the insurer. The old Act and the Motor Vehicles Act, 1988 (herein- after referred to as the 'new Act') mandate insurance, and prescribe the requirements of policies, the limits of liabilities and the duty of the insurer to satisfy judgments against persons insured in respect of third party risks. Sections 94, 95 and 96 of the old Act and Sections 147, 148 and 149 of the new act deal with these aspects. Since the liability is originally that of the insured, it has to place materials before the adjudicating Tribunal to show what is the quantum of indemnification under- taken by the insurer. The claimants are not expected to possess the policy or a copy thereof and the owners for the reasons best known to them do not choose to produce the policies. The Supreme Court in Jugal Kishore's case (supra) emphasised on the desirability of production of a document which is in possession of a party for an effective adjudication. In that background it was observed that the insurance company concerned should file a copy of the insurance policy along with its defence where it wants to take a defence in respect of a claim petition, that its liability is not in excess of the statutory liability. In Udayanath Pani v. Basanti dalai and Ors. : 72 (1991) CLT 495, one of us (Pasayat, J.) observed that it cannot be laid down as a general principle that in all cases the insurer is required to file a copy of the policy to show that its liability is not unlimited. Such a situation will arise only when there is a positive assertion that the liability of the insurer is unlimited and claim to that effect is made. Only in such cases the question of the insurer taking a defence that its liability is not unlimited arises. The view expressed in Udayanath Pani's case (supra) was approved by us in Fagilal Sinha v. Divisional Manager, Oriental Insurance Company Limited and Ors. (AHO No. 97 of 1991 disposed of on 27-3-1992).
8. In the instant case, at paragraph B of the Statement as per Column 23 of the claim petition, it is stated as follows:
"The mini truck was validly insured with opp. party No. 2. The driver-cum-owner had a valid driving licence and the statutory liability of the insurance company is Rs. 50,000/-."
The reference to opp. party No. 2 undisputedly is to the insurer, In the written statement filed by the owner of the vehicle with reference to the statement made in paragraph B of column 23, it is stated as follows :
"That averment made in the para 23-B, it is submitted that the alleged mini truck was validly insured with opp. party No. 2, the driver-cum-owner had a valid driving licence and asso road permit at the relevant and material time."
There is no assertions by the claimants that the liability of the insurance company is beyond Rs. 50,000/-. On the contrary the specific assertion is that the insurer's statutory liability is Rs. 50,000/-. There is also no assertion by the insured that the insurer was beyond Rs. 50,000/-. In fact nothing has been stated in that regard in the written statement vis-avis claimants' statement regarding statutory liability. Therefore, non-production of the policy was not of consequence, and the questions of an unlimited liability being fastened on the insurer for non-production of the policy does not arise. The insured has filed a certificate of the insurance company. He is the person in primary custody of the insurance policy. He has to take the benefit of indemnification. It was his primary duty to show that the liability was an excess of the statutory liability and was unlimited. He chose not to do so, He did not make a positive statement that the liability of the insurer was unlimited. On the contrary the positive assertion of the claimants that the statutory liability of the insurer was Rs. 50,000/- was not even disputed. In that view of the matter, non-production of the policy by the insurer cannot be considered as a factor in favour of the insured. The position has been amply set beyond dispute by the Apex Court in Shrimati Rajendra Kumari and Anr. v. Smt. Shanta Trivedi and Ors. : AIR 1989 SC 1074. Paragraph 13 of the judgment which is relevant reads as follows :
"The next question is as to the liability of the Insurance Company the respondent No. 4 herein. It has been already noticed that the appellants conceded before the Tribunal that the liability of the Insurance Company did not exceed the sum of Rs. 4,000/-. Indeed as the law stood at the material time, the maximum liability of the Insurance Company in such a case was only to the tune of Rs 4,000/-. In the appeal before the High Court, the appellants did not challenge the finding of the Tribunal that the statutory liability of the Insurance Company was Rs. 4,000/- only as conceded to by the appellants. For the first time in this Court, it is submitted that the respondent No. 4 is liable for the entire amount of compensation. It is urged by Mr. Lodha appearing for the appellants that it was incumbent upon the respondent No. 4 to file before the Tribunal the Policy of Insurance in order to show that apart from the statutory liability up to Rs. 4,000/-, the respondent No. 4 had no further liability under the policy in excess of the statutory liability. In support of the contention, much reliance has been placed by the learned counsel on a decision of this Court in National Insurance Co. Ltd. v. Jugal Kishore : 1988 Ac CJ 276 ; (AIR 1988 SC 719). In that case, it has been observed that where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the Insurance Policy along with its defence. This decision, in our opinion, is not applicable to the facts of the instant case. It has been already noticed that before the Tribunal the appellants had categorically admitted that the liability of the Insurance Company extended to Rs. 4,000/- only. In the circumstances, we do not think that it was incumbent upon the Insurance Company to file the policy. The contention made on behalf of the appellants is, accordingly rejected."
The learned Single Judge was, therefore, not justified , in drawing an adverse inference for non-production of the policy. We are in agreement with the view of the Tribunal that the liability of the insurer was Rs. 50.000/- and the balance was the liability of the insured.
We accept the appeals which are allowed to the extent indicated above. No costs.
S.K. Mohanty, J.
I agree.