Patna High Court
The Oriental Fire And General Insurance ... vs Barun Kumar Pandey And Anr. on 7 February, 1989
Equivalent citations: 1989(37)BLJR230
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal arises out of a judgment and award dated 12-12-19r/9 passed by Shri Anand Prasad Sinha, Judicial Commissioner, Chotanagpur at Ranchi in Miscellaneous Judicial Claim (Motor Claims Case) No. 122 of 1979 whereby and whereunder the said learned court awarded a compensation of Rs. 25,000 in favour of the respondents and against the appellants.
2. The learned Tribunal below has also awarded interest at the rate of 6% per annum on the aforementioned amount.
3. The facts of the case lie in a very narrow compass.
4. The applicant who was aged 50 years and used to carry the business of contract, was travelling in a Maxi-Taxi bearing registration No. B. H. V. 6696 from Jameshedpur to Ranchi. The said Maxi Taxi met with an accident by dashing against a brick wall as a result whereof the applicant was thrown out from the said vehicle and received multiple injuries.
5. The applicant has asserted that he at the relevant time was having an income of Rs. 25,000 per month. In the said accident he had sustained the following injuries, as it appears from the judgment of the court below :
(1) Left leg pelvish bone (Ball socket joint) fractured at three places.
(2) Left ear cut into many pieces, (3) Cut injury in left and right eye brows.
(4) Left arm, shoulder muscles crushed, collar bone broken.
(5) Many other multiple injuries.
(6) Left, leg has become shorter by 2 inches causing permanent disability.
6. According to the applicant he had already spent a sum of Rs. 15,000 towards the treatment. He had further been medically advised either to go to London or to Bombay for the treatment of his hip bone.
7. The learned Tribunal below came to the conclusion that the vehicle was being driven rashly and negligently.
8. With regard to the amount of compensation the learned Tribunal below had held that the applicant had been 'dangerously injured' and he had become a 'practically invalid'. According to the learned Tribunal the applicant suffered disablement of a permanent nature.
9. Considering the facts and circumstances of this case the learned Tribunal below awarded a sum of Rs. 25,000 in favour of the applicant payable by the insurance company.
10. Mr. D. N. Chatterjee, the learned counsel appearing on behalf of the appellant raised a short question. He submitted that in terms of the provisions contained in Section 95(2) (b) of the Motor Vehicles Act, the liability of the insurance company in respect of a passenger carrying vehicle is limited to the extent of Rs. 5,000 per passenger. The learned counsel, therefore, submitted that the learned Tribunal below has committed an error in awarding the compensation to the extent of Rs. 25,000 and fastening the entire liability upon the insurer.
11. Mr. Chatterjee drew my attention, in this connection, to various decisions of the Supreme Court and other High Courts. The said decisions are reported in The Northern India Transporter's Insurance Company Limited v. Amrawati and Anr. 1988 ACJ 13, Madras Motor & General Insurance Co. Lid v. The United India Fire & General Insurance Co, Ltd., 1982 ACJ 460, Maya Devi v. Kartar Bus Service Ltd. and Ors. 1987 ACJ 145, Vniiied India Fire & General Insurance Co, Ltd. v. Nachu Kaba, 1987 ACJ 469 and National Insurance Co. I.M., New Delhi v. Jugal Kishore and Ors. .
12. Mr. Biren Poddar, the learned counsel appearing on behalf of the respondents, on the other hand, submitted that in view of the decisions of the Supreme Court of India in Motor Owners' Insurance Company Ltd. v. Jadavji Keshavji Modi the liability of the insurer in respect of each passenger will be to the extent of Rs. ' 50,000. The learned counsel, in this connection, has also relied upon a Division Bench decision of this Court in National Insurance Company Limited v. Chhunu Ram and Anr. as also a judgment of mine in the Oriental Fire and General Insurance Company v. Smt. Panamti Devi and Ors. reported in 1989 PLJR 45. The learned counsel in the alternative submitted that as the insurer has not produced the Insurance policy despite its possession, thereof an adverse inference should be drawn as against the applicant to the effect that the insurance Company did not confine its risk only to the extent of its statutory liability but its liability under the contract of insurance was unlimited. The learned counsel in this connection has relied upon a decision in National Insurance Co Ltd., New Delhi v. Jugal Kishore and Ors. .
13. The learned counsel has further placed strong reliance upon a decision of the Madras High Court in M/s. Oriental Fire & General Insurance Company v. Ramalingam and Anr. for the proposition that in case of a comprehensive police limitation of the insurer's liability prescribed under Section 95(2) of the said Act does not apply.
14. In Motor Owners' Insurance Co, Ltd.'s case (supra) the Supreme Court while considering the provisions contained in Section 95 (2) (a) of the Motor Vehicle Act held as follows :
12. If the words used by the legislature in Clause (a) of Section 95(2) were the sole factor for determining the outside limit of the insurer's liability, it may have been possible to accept the submission that the total liability of the insurer arising out of the incident or occurrence in question cannot exceed Rs. 20,000. Clause (a) qualifies the extent of the insurer's liability by the use of the unambiguous expression 'in all' and since that expression was specially introduced by an amendment, it must be allowed its full play. The legislature must be presumed to have intended what it has plainly said. But Clause (a) does not stand alone and is not the only* provision to be considered for determining the outside limit of the insurer's liability. In fact, Clause (a) does not even form a complete sentence and makes no meaning by itself. Like the other Clauses (b) to (d) Clause (a) is governed by the opening words of Section 95(2) i.0 the effect that "a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits that is to say, the limits laid down in Clauses (a) to (d). We have supplied emphasis in order to focus attention in the true question which emerges for consideration. What is the meaning of the expression 'any one accident?' If that expression were plain and unambiguous, and its meaning clear and definite, effect would be required to be given to it regardless of what we think of its wisdom or police. But as we will presently show, the expression 'any 0112 accident' does not disclose one meaning conclusively according to the laws of language. It clearly, as capable of more than one meaning, introducing thereby an ambiguity which has to be resolved by restoring to the well settled principles of statutory construction
13. The expression 'any one accident' is susceptible of two equally reasonable meanings or interpretations. If a collision occurs between a car and a truck resulting in injuries to five persons, it is as much plausible to say that five persons were injured in one accident as it is to say that each of the five persons met with an accident. A bystander looking at the occurrence objectively will be right in saying that the truck and the car met with an accident or that they were concerned in one accident. On the other hand, a person looking at the occurrence subjectively, will say that he met with an accident. And so will each of the five persons who were injured. From their point of view, which is the relevant point of view, any one accident 'means' accident to any one. In matters involving third party risks, it is subjective consideration which must prevail and the occurrence has to be looked at from the point of view of those who are immediately affected by it. If the matter is looked at from an objective point of view, the insurer's liability will be limited to Rs. 20,000 in respect of injuries caused to all the five persons considered en bloc as a single entity, since they were injured as a result of one single collision. On the other hand, if the matter is looked at subjectively as it ought to be, the insurer's liability will extend to a sum of Rs. 20,000 in respect of the injuries suffered by each one of the five persons, since each met with an accident, though during the course of the same transaction. A consideration of preponderating importance in a matter of this nature is not whether there was any one transaction which resulted in injuries to many but whether more than one person was injured, giving rise to more than one claim or cause of one single transaction. If more than one person is injured during the course of the same transaction each one of the persons has met with an accident.
14. A Division Bench of this Court in National Insurance Company v. Chunuram and Ors. , applying the principles enunciated by the Supreme Court in Motor Owner's Insurance Co. Ltd's case to a passenger carrying vehicle and held as follows :
10. It was vehementally contended by the learned counsel appearing on behalf of the appellant that if the meaning of the expression in respect of 'any one accident' as given by the Supreme Court in the 1981 case is to be accepted even in relation to the claims relating to passenger buses then it would be violence to the express intention of the legislature in Sub-clause (4) and make the 1960 amendment meaningless as then there did not appear to be any sense for the legislature to prescribe different limitations for the different capacities of the passengers buses inasmuch as the outer limits of Rs. 50,000, 75,000 and 1,00,000 was made only keeping in view of the possibility of the larger number of passenger being involved in the accident in bigger buses so that the limit of admissible claim fixed for each individual passenger in such cases may not prove too small and inadequate on account of appointment in view of the outer limits of liability fixed for the insurer and the number of passenger being carried in any such vehicle in view of the decision of Supreme Court the court may perhaps in a given case may award the maximum compensation even to only one passenger who might be a victim of the accident in the type of the bus he was travelling against the Insurance Company.
11. The contention of the learned counsel for the appellant is attractive and finds support from all the decided cases of the various High Courts, some of which have been noticed by the Supreme Court and overruled in its 1981 decision referred to above as well as by the decision of the Supreme Court itself in but in view of the being effect of this authority which has noticed and distinguished the earlier' case, the argument of the learned counsel for the appellant cannot be accepted and it must be held that the provisions contained in Sub-clause (1) of Clause (b) of Sub-section (2) of Section 95 must be given way to the interpretation given by the Supreme Court in the above case.
15. Similarly in Tara Poda Roy v. Dwijendra Nath Sen and Ors. , a Division Bench of this Court, followed the aforementioned decision and held as follows :
7. In order to obviate this anomalous situation created by the aforesaid Bench decision Mr. Ghost in his argument relied upon a subsequent Bench decision of this court in the case of National Insurance Co. Ltd. v. Chunnu Ram taking a contrary view and supporting fully the submission of Mr. Ghosh. It has been pointed out by learned counsel Mr. Ghosh that one of the learned judges, who was a member of the Bench which delivered the judgment in Misc. Appeal No. 188 of 1974 was also a member of this Bench decision. Be that as it may it appears that when the previous unreported judgment was delivered on 18th May, 1980, the judgment of the Supreme Court in the Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi was not pronounced interpreting the correct position of law. In this Supreme Court decision the relevant words appearing in Section 95(2) of the Motor Vehicles Act (IV of 1939), 'any one accident' have been interpreted. The said expression has been interpreted to mean, 'accident to any one.' It has been held that the word 'accident to any one' is used in his expression 'any one accident' from the point of view of various claimants each of whom is entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurer.
Following this Supreme Court decision, the Ranchi Bench in National Insurance Co. Ltd.'s case (supra) observed 'in view of the decision of the Supreme Court, the Court may perhaps in a given case award the maximum compensation even to only one passenger who might be a victim of the accident in the type of the bus he was travelling against the Insurance Company. In the result the appeal which was preferred by the Insurance Company was dismissed and the order of the claims Tribunal awarding Rs. 20,000 to the claimants holding the same to be proper and justified was upheld.
8. It cannot, therefore, be disputed that the law as interpreted by the Supreme Court in the Motor Owners Insurance Co. Ltd. has to be followed in deciding the present appeal also.
16. The same extent is a decision of this Court in National Insurance Co. Ltd. v, Shamim Ahmad and Ors. reported in 1985 ACJ 749.
17. However, the Supreme Court in M. K. Kunhimohammed v. P. A. Ahmedkutty and Ors. distinguished the Motor Owners Insurance Co. Ltd.'s case on the ground that therein Clause (a) of Sub-section (2) of Section 95 was involved whereas in the said case the interpretation was required in respect of Clause (b) of Sub-section (2) of Section 95 of the said Act.
18. After analysing the case laws on the subject it came to the conclusion that the decision of the Supreme Court in Sheikhpura Transport Co. Ltd. v. Northern India Transport Insurance Co. Ltd.'s case and Manjushri Raha v. B. L. Gupta were correctly decided. The Supreme Court in the aforementioned decision overruled various decisions of different High Courts including a decision of this Court in National Insurance Co. Ltd. v. Shamim Ahmad and Ors. reported in 1985 ACJ 749 wherein a view was taken that in a case involving more than one passenger in an accident, the liability of the Insurance Company in respect of each passenger would be to the extent of Rs. 15,000 and approved those decisions wherein it was held that such liability shall only to the extent, as mentioned hereinbefore, in different Sub-clauses of Clause (b) of Sub-section (2) of Section 95 of the M.V. Act depending upon the nature of the passenger carrying vehicle.
19. The Supreme Court in the said decision took into consideration the amendment effected in Section 95 of the M.V. Act by Act No. 47 of 1982 and also various decisions covering the field. The Supreme Court in the said decision held as follows :-
10. Having regard to the large number of motor vehicles accidents which are taking place on roads and also to the fact that a large number of public service vehicles carrying passengers are involved in them, we are of the view that the limit of Rs. 15,000 fixed in the case of each passenger a ears to be still meagre and we hope that Parliament while enacting the Bill into law would take steps to increase the insurer's liability keeping in view the need for providing for adequate compensation as a measure of special security.
11. We should at this stage state that the High Court of Madras in K. R. Sivagami, Proprietor, Rajendra Tourist v. Mahaboob Nis Bi has taken the same view as regards the effect of Section 95(2)(b)(ii) of the Act as it stood before its amendment in 1982. It has observed that the said provision specifically provided for two limitations on the liability of the insurer in respect of an accident in which a vehicle carrying passengers was involved, the first limitation being the limitation contained in Sub-clauses (1), (2) and (3) of Section 95(2)(b)(ii) which provided that for the aggregate liability of the insurer in an accident and the second limitation being the one contained in Sub-clause (4) of Section 95(2) (b)(ii) which provided that subject to the limits aforesaid Rs. 10,000 for each individual passenger where the vehicle was a motor cab and Rs. 5,000 for each individual passenger in any other case. Khalid, J., as he then was, of the Kerala High Court has also accepted the same construction of Section 95(2) (b) in Madras Motor and General Insurance Co. Ltd. by its successor : The United Fire and General Insurance Co, Ltd. v. V. P, Balkrishan.
12. The High Court of Allahabad in New India Assurance Co. Ltd. v. Mahmood Ahmad, the High Court of Bombay in Shivahari Rama Tiloji v. Kashi Vishnu Agarwedekar and the High Court of Patna in National Insurance Co. Ltd. v, Shamim Ahmad and Ors. and in Tarn Padda Roy v. Dwijendra Nath Sen have overlooked the comulative effect of Sub-clauses (1), (2) and (3) and of Sub-clause (4) of Section 95 (2)(b)(ii) of the Act. They have failed to give effect to Section 95(2)(b)(ii) (4) of the Act. We are of the view that these decisions do not lay down the correct view. We may, however, state here that in Noor Mohammad v. Phoola Ram and in Raghiv Nasim v. Naseem Ahmad two Division Benches of the Allahabad High Court have construed the provision in question as we have done in this case. The decision of the single judge of Allahabad High Court in New India Assurance Co. Ltd. v. Mahmood Ahmad is dissented from in the later decision of the Division Bench of the Allahabad High Court in Raghib Nasim v. Naseem Ahmad.
20. In the said decision of the Supreme Court also drew the attention of the Parliament to its earlier decision in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhau Prabhatbhai and Anr. and suggested various remedial measures for their incorporation hi Vill No. 56 of 1987 which was then pending for consideration before the Parliament.
21. A similar view has been taken in Maya Devi v. Kartar Bus Services Ltd. and Ors. reported in 1987 ACJ 145, Piara Singh v. Kaushalya Devi and Ors. reported in 1987 ACJ 469, Bamanji Rustomji Gimvala v. Ibrahim Vali Master and Ors. reported in 1982 ACJ 380 and United India Fire & General Insurance Co v. Ltd. v. Bachu Kaba Satrotia and Ors. reported in 1987 ACJ 485.
22. In view of the aforementioned decision of the Supreme Court in M. K. Kunhimohammed v. P. A. Ahmed Kutty, , it has got to be held that the liability of insurance company was limited only to the extent of Rs. 5,000 per passenger.
23. The Supreme Court again in National Insurance Co. Ltd. v. Jugal Kishore held that in absence of any specific agreement undertaking any liability in excess of its statutory limit on receipt of separate premium therefor, the insurer's liability would be limited to the extent provided for in the statute. It was further held therein that the maximum liability under Section 95 (2) (b) prior to Amending Act 56 of 1969 was Rs. 20,000 only, which has been enhanced to Rs. 50,000 by the aforementioned amending act. In the said decision Supreme Court laid down the law thus;-
4. It has been urged by the learned counsel for the appellant that in view of the statutory provision contained in this behalf in Clause (b) of Sub-section (2) of Section 95 of the Act as it stood on the date of accident namely June 15, 1969 which happens to be prior to March 2, 1979, the date of commencement of Amending Act 56 of 1969, no award in excess of Rs. 20,000 could have been made against the appellant before dealing with the submission we may point out that the policy under which the bus aforesaid was insured had not been filed either before the Tribunal or before the High Court. A photostat copy of the policy, has, however, been filed in this Court and learned counsel for the respondents did not have objection in the same being admitted in evidence. Clause (b) of Sub-section (2) of Section 95 of the Act as it stood at the relevant time read as under;
95(2) subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely;
(b) where the vehicle is a vehicle in which passenger's are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire and reward, a limit of twenty thousand rupees, and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver.
5. On the plain language of the aforesaid Clause (b) which applies to the instant case it is apparent that the liability of the appellant could not be in excess of Rs. 20,000. Learned counsel for the respondents, however, urged that notwithstanding the provision contained in this behalf in Clause (b) aforesaid it was open to the insurer to take a policy covering a higher risk than contemplated by the aforesaid Clause (b) and consequently the said clause had to be read subject to the terms of the policy which was taken in the instant case. We find substance in this submission in view of the decision of this Court in Pushpabai Purshattam Uldeshi v. Ranjeet Ginning and Pressing Co. where it was held that the insurer can always take policies covering risks which are not covered by the requirements of Section 95 of the Act.
24. In this view of the matter it must be held that the decisions cited by the learned counsel for the appellant are applicable in the facts and circumstances of this case whereas the decisions cited by the learned counsel for the respondent are not applicable.
25. However, in view of the fact that a judgment of mine has been relied upon by the learned counsel for the appellant in the Oriental Fire & General Insurance Co. Ltd. v. Smt. Panapati Devi reported in 1989 PLJR 45 it may be pointed out that in the said case the vehicle involved in the accident was a goods carrying vehicle and therefore, in that case Section 95(2) (a) of the M.V. Act was attracted and not in Section 95(2)(b) thereof. In this case the liability of the Insurance Company is in terms of Section 95(2) (b) of the Act.
26. Unfortunately, however, the appellant has not produced the policy of the insurance. It was the bounden duty of the insurer and/or the owner of the vehicle who were in possession of the said policy to produce the same before the learned Tribunal below.
27. In National Insurance Co. Ltd.. v. Jugal Kishore , the Supreme Court emphasised the obligation on the part of the insurer to produce a copy of the insurance policy before the Court. The Supreme Court in the aforementioned case held as follows :
10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies,, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duly is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases 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. Even in the instant case, had it been done so at the appropriate state necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to at fairly can never be over-emphasised.
28. As indicated hereinbefore, Mr. Poddar, relied upon the aforementioned observations of the Supreme Court and submitted that an adverse inference should be drawn as against the appellant for non-production of the insurance policy and it should be held that the policy covered a risk in excess of the statutory liabilities.
29. It is well-settled that in order to make the insurance' company liable to pay a sum higher than its Statutory liability in terms of Section 95(2) of the Act, a specific agreement to the aforementioned effect has to be arrived at by and between the owner and the insurance company and separate premium has to be paid for enhancement of such liability undertaken to be paid by the insurance company in this behalf.
30. In this case neither the insurance company nor for that matter the owner of the vehicle (respondent No. 2) has produced the policy of the insurance.
31. In Jugal Kishore v. Rai Singh and Ors. reported in 1983 TAG 285 it was held that if the insurance company has failed to place on record the documentary evidences available with it for showing that its maximum liability was confined to the statutory one, its liability cannot be restricted so far as the insurance is concerned. In the said case, it was further held that if the insurance company has any claim it can proceed against the owner under Section 96(4) of the Act,
32. In Hansraj and Anr. v. Sukhdeo Singh and Anr. reported in 1983 TAG 43, the Punjab & Haryana High Court laid down on the following terms :
Equality I find substance in the stand taken by the learned counsel for the appellant on the basis of the language of Section 96 (1) of the Act. This in terms says that the insurer would be liable to pay the person entitled to the benefit of the decree any amount not exceeding the sum assured payable thereunder, as if he were the judgment-debtor. The maximum of liability of the insurer, therefore, is the sum assured under the policy of insurance. The particular language used is 'any sum not exceeding the sum assured'. I see no reason to contrue and read this plain language to mean as any such not exceeding the sum prescribed in Section 95(2) of the Act. Such a construction would in my opinion be doing violence to the plain language of the provision and as shown above is otherwise not warranted or larger principles.
9. It would appear that the precedent of the final Court, though not on all four, seems to me to cover the point substantially by way of analogy. In Pushpabai Purshottam Udeshi and Ors. v. Ranjit Ginning and Pressing Co. and Anr. 1977 ACJ 343 : 1977 TAG 387 (SC), one of the issues before their Lordships was with regard to the liability of the Insurance Company to pay compensation to the passengers carried in a private motor car. The Insurance Company policy taken out by the insured expressly covered the risk of liability to such passengers. However, it was the admitted position that there is no statutory requirement whatsoever in Section 95 to cover the risk of injury to passengers carried in a private car. Even in such a case their Lordships held the Insurance Company directly liable to the third party upto the extent of the sum assured under the award of the Tribunal. If thus flows from this decision that even in a case which is not within the specific and statutory requirements of the insurance policy and the limits of law prescribed under Section 95(2) the insurer would still be liable upto the sum assured the satisfaction of an award made under Section 110-B of the Act. Once that is so, it would fortiorari follow that for matters within the requirements of an insurance policy and the financial limits prescribed therein the insurer would be even more liable to satisfy the award. Merely because the minimum financial limits are prescribed in Section 95(2), it cannot possibly absolve the insurer from the payment upto the sum assured for which he has specifically contracted in consideration of extra premium, paid by the insured. It calls for notice that in Pushpabai Purshotiam Udeshi's case, 1976 ACJ 426 (Raj) their Lordships after referring to the various sub-sections of Section 95 had been observed as follows :
"The insurer can always take policies covering risks which are not covered by the requirements of Section 95. In this case the insurer had insured with the insurance company the risk to the passengers. By an endorsement to the policy the insurance company had insured the liability regarding the accidents to passengers in the following terms :
'In consideration of the payment of an additional premium it is hereby understood and agreed that the company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger....
'after holding as above and construing the insurance policy, their Lordships granted an award in favour of the claimants to the extent of Rs. 27,500 out of which the liability of the insurance company was restricted to Rs. 15,000 which was the sum assured under the policy. It would thus be manifest that the aforesaid observations and the decision in a way materially aids the case of the appellants.
10. In view of the aforesaid binding enunciation of the final Court, it is unnecessary to advert individually to any earlier High Court cases which may have struck a discordant note. However, in fairness to the learned counsel for the respondent we must notice the United India Fire & General Insurance Co. Ltd. and Anr. v. Sayar Kantoar and Ors. 1976 ACJ 426 (Raj) where in paragraph 75 of the report a conclusion contrary to the ratio in Pushpabai Purshottam Udeshi's case, 1977 ACJ 343 : 1977 TAG 187 (SC) seems to have been arrived at. With great respect it appears to us that the view expressed in the aforesaid Rajasthan case cannot now hold the field against the later binding judgment of the Supreme Court and I would, therefore, respectfully record my dissent therefrom.
33. Similarly in Ajit Singh v. Shyam Lal and Ors. reported in 1984 TAC 431, a Division Bench of the Punjab & Haryana High Court held as follows :
Where the statutory provision in question merely indicates the requirement about the policy and does not prohibit covering of greater risk by the insurer, it is the policy of the insurance company which could show the extent of the risk that the insurer had sought to cover. Where the insurance company for whatever reasons fails to bring on the record the policy of insurance it cannot be heard to say that it had agreed to indemnify the insured only to the extent indicated in the statutory provision. In this regard reference may be made to Shyamlal v. New India Assurance Co Ltd. 1979 ACJ 208 (MP); United India Insurance Co. Ltd. v. Pallamparty Indiramma 1982 ACJ 521 (AP) and Jugal Kishore v. Rai Singh, 1982 ACJ 503 (Delhi).
34. To the similar effect is a decision of Gauhati High Court, United India Fire & General Insurance Company v. Mrs. Kalsum Begum, reported in (1986) Vol. 2 TAG 397. In the said decision after taking into consideration various decisions the Gauhati High Court stated the law thus :
It is settled law that an insurer can cover a higher risk than the statutory limit. As was held in United India Fire & General Insurance Co. Ltd. v. Minaben Harish Chandra , Sub-section (2) of Section 95 prescribes the minimum requirement of the insurance policy but it is open to the insurer to cover risk to a larger extent, and he does, the liability will be determined in terms of the risk covered. In Assam Corporation v. Binu Rai AIR 1975 Gau 3, where the policy covered widor risk than under Section 95(2), the Tribunal was held competent to make an award directing the insurer to pay such compensation, to the claimant for which the insured was found liable.
23. In case the insurer is made to pay in excess of the liability it covered, it would be entitled to sue the insured for the money it had to pay.
35. The similar extent is a decision The Commonwealth Assurance Co. Ltd. v. Smt. Mima Sarkar and Anr. .
36. In British India General Insurance Co. Ltd. v. Maya Devi, reported in (1987) Vol 1 ACC 175, the Supreme Court refused to interfere on the ground that at a later stage it would be difficult for the claimant to recover the dues from the owner although in that case the Supreme Court held that the liability of the insurance company was confined to its statutory liability.
37. I am in respectful agreement with the aforementioned views.
38. As in the instant case admittedly the insurer did not bring the insurance policy on record, in my opinion, it is estopped and precluded from raising the defence that its liability was limited to the statutory liability in terms of Section 95(2) (b) of the M.V. Act.
39. In the event it is found by the appellant that its liability was confined to the statutory liability in view of the policy of the insurance, it can take recourse to recover the rest of the amount from the owner of the vehicle in terms of Section 96(4) of the M.V. Act.
40. Before parting with the case another submission of Mr. Poddar may be noticed. He submitted that if the policy of the insurance was a comprehensive one, the insurer was bound to pay the entire liability. As noticed hereinbefore, in support of this proposition he has relied upon a decision of the Madras High Court .
41. In view of the decision of the Supreme Court in National Insurance Co. Ltd.'s case this contention cannot be accepted. In the said decision the Supreme Court held as follows :
We have accordingly perused the photostat copy of the policy to ascertain whether risk for any amount higher than the amount of Rs. 20,000 contemplated by Clause (b) aforesaid was covered. Our attention was invited by learned counsel for the respondents to the circumstance that at the right hand corner on the top of page 1 of the policy the words 'Commercial Vehicle Comprehensive' were printed. On this basis and on the basis that the premium paid was high than the premium of an 'act only' policy it was urged by the learned counsel for the respondents that the liability of the appellant was unlimited and not confined to Rs. 20,000 only. We find it difficult to accept this submission. Even though it is not permissible to use a vehicle unless it is covered at least under an 'act only' policy it is 'not obligatory for the owner of a vehicle to get it comprehensively insured. In case, however, it is got comprehensively insured a higher premium than for an 'act only' policy is payable depending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered upto the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf. Comprehensive insurance of the vehicle and payment of high premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under Sub-section (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. Likewise, if risk of any other nature for instance, with regard to the driver or passengers etc, in excess of statutory liability, if any, is sought to be covered it has to be clearly specified in the policy and separate premium paid therefor. This is the requirement of the tariff regulations framed for the purpose.
42. In view of the aforementioned authoritative pronouncement of the Supreme Court which is the law of land in terms of Article 141 of the Constitution of India it must be held that by entering into a contract of insurance covering comprehensive, the insurer cannot be said to have agreed to indemnify the owner to an unlimited amount.
43. In this view of the matter there is no merit in this appeal which is accordingly dismissed with costs. Advocate fee assessed at Rs. 2,000.