Rajasthan High Court - Jaipur
Hastimal Lodha vs Shakuntala Kumari And Ors. on 23 October, 1997
Equivalent citations: 1999ACJ790
JUDGMENT D.C. Dalela, J.
1. Both the appeals have arisen out of the common award dated 5.9.1994 passed by the learned Motor Accidents Claims Tribunal, Jaipur City, Jaipur, (for short 'the Tribunal'), in the Motor Accident Claim Case Nos. 566 and 728 of 1987, relating to the same accident that took place on 27.4.1987. Both the appeals involve a common legal question, therefore, they are being decided by this common judgment.
2. It is alleged that on 27.4.1987 at about 3.30 p.m., Banwari Lal and Harishchand Kumar were going on a scooter from Tilak Nagar towards Moti Doongri Road, a bus bearing No. RRZ 3851 collided with the scooter from back. The scooter was driven by Harishchand Kumar and Banwari Lal was pillion rider. The bus was driven by Ismail Khan rashly and negligently. Both Banwari Lal and Harishchand Kumar sustained injuries in the accident and ultimately, both of them expired. The bus was owned by Hastimal Lodha and it was insured with National Insurance Co. Ltd.
3. Respondent Nos. 1 to 4 in Appeal No. 1080 of 1994 and the respondent Nos. 1 to 5 in the Appeal No. 1081 of 1994 are the legal heirs of Harishchand Kumar and Banwari Lal respectively. The legal heirs of Harishchand Kumar preferred a Claim Petition No. 728 of 1987 before the learned Tribunal and the legal heirs of Banwari Lal preferred the Claim Petition No. 566 of 1987 before the learned Tribunal. Both these claim petitions were decided by the common award by the learned Tribunal.
4. Hastimal Lodha, the owner of the bus, has preferred both these appeals relating to both the claim petitions. Appeal No. 1080 of 1994 is with regard to the death of Harishchand Kumar, whereas the Appeal No. 1081 of 1994 relates to the death of Banwari Lal in the accident.
5. The bus was insured with National Insurance Co. Ltd. which is respondent No. 5 in Appeal No. 1080 of 1994 and the respondent No. 6 in the Appeal No. 1081 of 1994. Since the driver of the bus, Ismail Khan has died, respondent Nos. 6 to 12 in Appeal No. 1080 of 1994 and the respondent Nos. 7 to 13 in Appeal No. 1081 of 1994 are the legal representatives of Ismail Khan.
6. In the claim petition relating to the death of Harishchand Kumar in the accident, the learned Tribunal has awarded a total compensation of Rs. 2,50,000 to the claimants. The liability of the insurance company was fixed at Rs. 50,000 only, while rest of the amount was to be paid by the appellant and legal heirs of deceased Ismail Khan, jointly and severally. In the case relating to the death of Banwari Lal in the accident, the learned Tribunal awarded a total compensation of Rs. 2,45,000 to the claimants. The liability of the insurance company was fixed at Rs. 50,000 only and the rest of the amount was directed to be paid by the appellant and the legal heirs of Ismail Khan, jointly and severally.
7. Feeling aggrieved by the award dated 5.9.1994, passed by the learned Tribunal, the owner of the bus, Hastimal Lodha has preferred these appeals.
8. I have heard the arguments of both the sides.
9. The main contention of the learned Counsel for the appellant in both the appeals is that the decision of the learned Tribunal fixing the liability of the insurance company at Rs. 50,000 is erroneous and according to the learned Counsel for the appellant, the insurance company is liable to pay the entire award amounts jointly and severally.
10. No other point has been argued and pressed before me.
11. A perusal of the insurance policy, Exh. D-l, would show that a premium of Rs. 240 has been charged by the insurance company for the liability to public risk. Naresh Kumar Bhardwaj, NAW 3 and Nanak Ram, NAW 4, appearing on behalf of the insurance company have also admitted that the premium of Rs. 240 was taken by the insurance company for the liability to public risk. They have also stated that the policy in question was comprehensive.
12. It has been admitted before me at Bar by both the sides that Rs. 200 was the premium at the relevant time chargeable for the 'Act only' policy, while the premium of Rs. 240 is chargeable in case of liability to third party public risk. This, in my opinion, means that extra premium of Rs. 40 was charged by the insurance company for covering the liability for the death or bodily injury of the third party and, as such, the liability of the insurance company would not be as per Act, but would be unlimited. In the case of Draupadi Devi v. Inder Kumar, 1998 ACJ 418 (Rajasthan), this Court has held that:
Be that as it may, even if we accept that Rs. 200 was the premium for the 'Act only' policy and Rs. 240 was the premium for the liability to the 'public risks', then also it is difficult to hold that Rs. 40 were not collected by the insurer for covering the risk of death or bodily injury of the third party...the only inference that can be drawn is that Rs. 40 were charged extra for covering the liability for the death or bodily injury of the third party.
It has to be held that the insurance company had accepted unlimited liability in respect of the death and bodily injury of the third party.
13. In the case of New India Assurance Co. Ltd. v. Pushpa Kakkar, 1993 ACJ 328 (Delhi), it has been held by the Delhi High Court that:
a sum of Rs. 240 has been charged by the insurance company, respondent No. 2, to cover third party liability which premium is more than the 'Act only' premium of Rs. 200, as such, I find force in the arguments of the learned Counsel for the petitioners that the liability of insurance company would not be as per the Act which is Rs. 1,50,000 but would be unlimited.
14. In the present case in hand, a premium of Rs. 240 has been charged by the insurance company to cover the liability to public risk which is higher than the 'Act only' premium of Rs. 200. Therefore, in view of the above decisions the liability of National Insurance Co. Ltd. in these appeals would be unlimited and the insurance company is, therefore, liable to meet out all third party liability claims and the insurance company cannot avoid the liability to pay the awarded amount to the claimants.
15. Upon considering the oral submissions made at Bar, the record of the learned Tribunal and the award of the learned Tribunal, I find myself broadly in agreement with the conclusions of the learned Tribunal that the accident took place on account of the rashness and negligence of the driver of the bus No. RRZ 3851 and there was no fault on the part of the victims. I also broadly agree with the conclusion of the learned Tribunal with regard to the quantum of compensation in both the matters. In my opinion, the findings, reasonings and the conclusions of the learned Tribunal in these regards are not palpably wrong, manifestly erroneous and demonstrably unsustainable.
16. In the result, these appeals are partly allowed. The National Insurance Co. Ltd., M.I. Road, Jaipur (respondent No. 5 in Appeal No. 1080 of 1994 and respondent No. 6 in Appeal No. 1081 of 1994) is also liable to pay the entire amount of compensation along with interest awarded by the learned Tribunal to the claimants along with the appellant, Hastimal Lodha, the owner of the bus and the legal heirs of the deceased driver, jointly and severally and its liability is not limited to Rs. 50,000 as held by the learned Tribunal. To this extent the award of the learned Tribunal shall stand modified.
Other part, terms and conditions of the award, are maintained.