Patna High Court
Ganesh Prasad Gupta vs Bando Devi And Anr. on 20 February, 1998
Equivalent citations: 1998(2)BLJR1207
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. The appellant, who is the owner of the vehicle, has filed this appeal against the judgment and award dated 2.7,1996 passed by the Addl. District & Sessions Judge cum Accident claims Tribunal, Gumla (hereinafter referred to as the Tribunal) in M.J.C. No. 10 of 1989 by which the learned Tribunal awarded a sum of Rs. 1.5 lakhs to the claimant respondent No. 1 and apportioned the liability between the appellant and respondent No. 2, the United India Insurance Company Limited. By the said judgment and award, the appellant was directed to pay Rs. 1,00,000/- (rupees one lakh) holding that the liability of the respondent Insurance Company is limited to the extent of Rs. 50,000/- (rupees fifty thousand).
2. The facts of the case lie in a very narrow compass. The claimants filed an application under Section 110-A of the Motor Vehicles Act for grant of compensation on account of death of her husband Khabail Oraon, who died in a motor vehicle accident. In the said claim case, the appellant and the respondent No. 2 were impleaded as owner and the insurer of the bus bearing registration No. NKI 6366. The case of the claimants is that on the relevant date, the deceased was moving from Ghaghra to Chapka at about 1.00 p.m. when the aforesaid bus which was being driven rashly and negligently dashed causing fatal injury to the deceased. On being noticed by the Tribunal, both the appellant and the respondent No. 2 appeared and filed their respective written statements. The appellant, who is the owner of the bus in, his written statement specifically pleaded that the vehicle in question was insured with the respondent No. 2, the United India Insurance Company Limited and on payment of additional premium, the said insurance company undertook the cover the unlimited liability for payment of any amount of compensation on account of the death or bodily injury to a third person. It was contended in the written statement that in terms of the policy, the insurance company is liable to pay entire compensation, if awarded by the claims Tribunal. In the written filed by the respondent No. 2, the insurance company, it was admitted that the bus was insured with it on the alleged date of accident, subject to terms, conditions, restrictions and exceptions contained in the insurance policy. The Tribunal after hearing both the parties passed the impugned judgment and awarded a sum of Rs. 1.50 lakhs together with interest @ 12% from the date of award. However, the claims Tribunal held that out of Rs. 1.5 lakhs, the insurance company is liable to pay Rs. 50,000/- and the rest amount shall be paid by the owner of the vehicle.
3. Mr. S.N. Lal, learned Counsel appearing on behalf of the appellant assailed the impugned judgment and award as being contrary to facts and evidence on record. The learned Counsel submitted that it was the specific case of the appellant that on payment of additional premium, the insurance company insured the vehicle against unlimited liability and this fact was not denied or disputed by the Insurance Company in its written statement. The learned Counsel submitted that the claims Tribunal has illegally and erroneously relied on the provision of Section 95(ii)(b)(i) of the said Act and held that the liability of the insurance company is limited to Rs. 50,000/- (rupees fifty thousand). The learned Counsel also challenged the quantum of compensation awarded by the claims Tribunal as being in highly excessive and exorbitant. The learned Counsel lastly drew my attention to the insurance policy, a copy of which has been annexed as Annexure-1 to the Memo of Appeal and submitted that on payment of additional premium, the Insurance Company undertook unlimited liabili0y in respect of death or bodily injury to a person in case of an accident. According to the learned Counsel, therefore, on the failure of the insurance company to produce the insurance policy, the claims Tribunal ought to have awarded entire compensation against the insurance company.
4. On the other hand, Mr. R.K. Prasad, learned Counsel appearing for the respondent Insurance Company submitted that the judgment and award passed by the Tribunal is in accordance with law. According to the learned Counsel, in absence of special contract between the owner of the vehicle and the insurance company covering unlimited liability in respect of accident, the owner cannot be exonerated of his liability to pay the amount of compensation. The learned Counsel put reliance on the decision of Kashi Nath Pandey v. Archand Sahay 1998 (1) PUR 279; Puransingh v. Murlilal and Ors. 1997 (Sic) ACC 567 and the New India Assurance Co. Ltd. v. N.M. Annakutty 1997 (2) ACC 611.
5. Before appreciating the rival contentions made by the learned Counsel, it would be useful to look into the defence taken by both owner and the insurer of the vehicle in their respective written statements. The learned Counsel supplied me a copy of the written statement. From perusal of the written statement filed by the appellant, owner of the vehicle, it appears that a specific defence was taken that on payment of additional premium, the insurance company undertook to indemnify the insured in respect of unlimited liability. For better appreciation, paragraphs 6 7 and 8 of the written statement are reproduced hereinbelow:
5. That the vehicle in question bearing registration No. MKL 6366, during the relevant period was insured with/by the United India Insurance Company Ltd., Branch Rourkela, in the name of this O.P.; the insurance Policy No. bearing O. 34202/24-A/1/00089/89 and the certificate No. bearing 034202/24-A/6/3559 of 89. The aforesaid Insurance Co. is a necessary party.
7. That it is submitted that on payment of additional premium, the said Insurance Co. has indemnified this O.P. against liability at law for compensation for death of bodily injury to any person including passengers and therefore, in terms of the policy and also in accordance with the provisions of law, the said Insurance Co. alone is liable to pay compensation, if any, awarded.
8. That the said Insurance Co. in terms of the endorsement No. ITM-13 has effected entire liability in case of death of, or bodily injury to, any passenger of the Bus and, therefore, the said Insurance Co. alone is liable to pay compensation awarded, if any.
6. On the other hand, from perusal of the written statement filed by the insurer of the vehicle, it appears that an evasive defence was taken, although the insurance of the vehicle was admitted by the company. Paragraph 10 is the only relevant paragraph which is quoted below:
10. That the statement contained in paras 14, 15 and 16 of the claim petition arc matters of record and need no specific reply. This opposite party submits that the Bus No. MKL-6366 was insured with this opposite party on the alleged date of the accident, subject to the terms, conditions, restrictions and exceptions contained in the policy of insurance.
7. It is thus evident that the respondent insurance company, although admitted the insurance of the vehicle, but had not taken the specific defence that its liability was limited to the extent as provided under Section 95 of the Motor Vehicles Act, 1939. From perusal of the judgment, it appears that the Claims Tribunal has neither framed any issue nor gave any finding on the question of the liability of the Insurance Company in terms of defence taken in the written statement. The claims tribunal has not gone into that question because of the fact that neither the owner nor the insurer adduced any evidence on the question of the extent of their liability. However, from perusal of a copy of the insurance policy (Annexure-1) it appears that for covering unlimited liability, some additional payment was made by the insured, but it is not clear whether this relates to unlimited liability with regard to damage to the property or to the death, or bodily injury to a third party. This, in my opinion, needs adjudication by the claims Tribunal because of the fact that it was equally the responsibility of the Insurance Company to produce and prove the insurance policy in order to show that its liability was limited.
8. Having regard to the facts and circumstances of the case and the discussions made above, without disturbing the quantum of compensation assessed by the claims tribunal, the matter needs to be remitted to the claims tribunal for deciding the question of extent of the liability of the Insurance Company and the appellant.
9. In the result, the appeal is allowed and only that part of the award by which the amount of compensation has been apportioned is hereby set aside and the matter is remitted to the claims Tribunal for deciding the question of extent of liability of the appellant and the insurance company and for giving its award accordingly. The parties shall be allowed to lead evidence which shall be confined only on the question of liability.