Gauhati High Court
United India Insurance Co. Ltd. vs Amitabha Dey And Ors. on 13 August, 1992
Equivalent citations: 1994ACJ642
Author: Chief Justice
Bench: Chief Justice
JUDGMENT U.L. Bhat, C.J.
1. These appeals arise out of a common award passed by Motor Accidents Claims Tribunal (District Judge, Shillong) in M.A.C. Case Nos. 38, 39, 48 and 64 of 1987 arising out of an accident which took place on 27.6.1987 in which 4 passengers travelling in a tourist taxi WNF 8856 died instantaneously. We have heard all the learned counsel appearing in these cases.
2. Mokul Dey, his wife Bithika Dey, Faslul Bari Choudhury and Kanulal Kar were travelling in a tourist taxi from Guwahati to Silchar. On account of the negligence of the driver, the car fell into a deep gorge and these passengers died instantaneously. The three sons of Mokul Dey and Bithika Dey filed two claim petitions, M.A.C. 38 of 1987 and M.A.C. 39 of 1987 claiming compensation from the driver, owner and insurer of the vehicle. One of the legal representatives of Faslul Bari Choudhury filed a claim petition, M.A.C. 64 of 1987 claiming compensation on behalf of himself and other legal representatives impleaded as respondent Nos. 4 to 9 in the claim petition. The widow of Kanulal Kar on behalf of herself and her minor children filed a claim petition, M.A.C. 48 of 1987 claiming compensation.
3. The driver did not contest the claims. The owner contested the claims and also pleaded that the vehicle was at the relevant time fully covered by a comprehensive insurance policy No. 130204/24/1/00002/ 86 and the entire liability has to be met by the insurer. The insurer also filed written statements generally disclaiming its liability. Interim relief was granted to the claimants. Tribunal held that the accident was as a result of the negligence of the driver and, therefore, the owner and the insurer are liable. The insurer was held liable to pay the entire compensation amount awarded in each of the cases. The amount claimed and the amount awarded are as follows:
M.A.C. Amount Amount Case No. claimed awarded 38 of 1987 Rs. 3,00,000/- Rs. 75,000/- 39 of 1987 Rs. 5,00,000/- Rs. 1,00,000/- 48 of 1987 Rs. 8,00,000/- Rs. 1,85,000/ 64 of 1987 Rs. 12,00,000/- Rs. 2,00,000/-
4. In one of the cases the insurer filed an application for reviewing the order contending that the owner had produced the insurance policy and according to the policy, the insurer had only statutory liability to pay Rs. 15,000/- in regard to each of the passengers. The Tribunal dismissed the review petition.
5. Learned counsel for the appellant has raised two contentions before us. The first relates to the quantum of compensation awarded which he describes as excessive. We have carefully gone through the memoranda of appeal in the four appeals. The insurer has not taken any contention regarding quantum of compensation; nor did the insurer effectively contest the same before the Tribunal and hence this contention is overruled.
6. The second contention is that insurer had raised a contention before the Tribunal that under the contract of insurance entered into between the insurer and the owner of the car, the liability of the insurer in regard to death of passengers had been specifically restricted to Rs. 15,000/-, namely, the statutory liability, that though the insurer did not produce copy of the insurance policy or the certificate, the owner had produced a copy of the policy and that has been received by the Tribunal, but the Tribunal committed a serious error in ignoring the policy and directing the insurer to pay the entire compensation amount.
7. It is, therefore, necessary to examine the written statements filed by the insurer in four cases. In M.A.C. 38 of 1987 and M.A.C. 39 of 1987, insurer filed identical written statements. Appellant relies on the identical plea raised in para 6 of the written statement which reads thus:
That, as regards para 16 of the claim petition, the averment therein is subject to verification of the records of the answering opposite party in its office. However, in any event, the liability of the insurance underwritten is always confined within the scope and limit of the insurance policy in question and subject to strict adherence of the terms and conditions of the insurance policy.
The above is an answer to para 16 of the claim petition where the appellant is shown as the insurer. All that is stated in para 6 of the written statement in the two cases is that the insurer would like to verify the records in its office and the liability of the insurer is always confined to the limit of the policy in question and subject to the terms and conditions of the policy. It is surprising to note that para 6 of the written statements in the two cases does not contain a plea that under the contract of insurance the liability of the insurer is subject to statutory limit, namely, Rs. 15,000/- per passenger.
8. Identical written statements are filed in M.A.C. Case Nos. 48 of 1987 and 64 of 1987. Appellant relies on para 3 of the written statements which reads thus:
That admittedly the deceased was a passenger travelling along with others in a hired tourist taxi and the amount of compensation liability upon the insurer in such cases is statutorily limited to no more than Rs. 15,000/- (Rupees fifteen thousand) only.
The above para only indicates that the statutory liability of the insurer in regard to a passenger in a hired tourist taxi is Rs. 15,000/-. The para does not contain a plea regarding the terms and conditions of the contract between the insurer and the owner of the car in the instant case, whether the contract covered only the statutory liability or whether it covered further or higher liability. Whenever an insurer wants to raise a plea about limitation of its liability, the insurer should refer to the terms of the particular contract or policy of insurance entered into between the parties and indicate the nature and terms of the policy. Such a pleading is totally absent in these cases. In our opinion, the written statements of insurer do not disclose a plea that under the terms of the policy of insurance in the instant case, liability of the insurer is limited to statutory liability.
9. Section 94 of the Motor Vehicles Act, 1939, states, inter alia, that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, a policy of insurance complying with the requirements of this chapter. Section 95 prescribes the requirements of policies and limits of liability. The policy must be issued by a person who is an authorised insurer. The policy must insure the person or classes of persons prescribed to the extent prescribed in Sub-section (2) of Section 95 against liability which may be incurred in respect of death of or bodily injury to any person or damage to any property of a third party and against death of or bodily injury to any passenger of a public service vehicle. There are certain exceptions contemplated in the proviso to Sub-section (1). Sub-section (2) states, inter alia, that subject to proviso to Sub-section (1), a policy of insurance shall cover any liability to the extent indicated. Clause (b) of Sub-section (2) deals with vehicles in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment. This limit prescribed in respect of passengers is Rs. 15,000/- each for individual passenger.
10. The Motor Vehicles Act, 1939, barred the user of a vehicle in a place unless it is covered at least under an 'Act only' policy. It is true that it is not obligatory for the owner of the vehicle to get it comprehensively insured or insured to cover risk other than those required to be covered by an 'Act only' policy or for amounts in excess of the minimum prescribed for an 'Act only' policy. It is open to the owner of a vehicle to get such a wider coverage on payment of prescribed premium. Such insurance entitles him to claim reimbursement to the extent covered by the policy. [See Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. Pvt. Ltd. 1977 ACJ 343 (SC) and National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC)]. The owner of the car in the present case took a contention that the policy is comprehensive one and he is entitled to reimbursement for the entire compensation that may be ordered to be paid. The insurer in its written statement referred to the statutory provision but did not state anything about the nature of the policy, namely, whether it is an 'Act only' policy or a policy with a wider coverage or higher limit. In other words, the insurer did not raise a contention that because the policy in question is an 'Act only' policy or because of the terms and conditions of the contract of insurance, its liability is restricted to Rs. 15,000/- per passenger. The owner of the vehicle is normally expected to be in possession of the policy or certificate of insurance and he has a duty to produce the document before the Tribunal. Similarly, the insurer is expected to be in custody of the entire records relating to the contract including the office copy or true copy of the insurance policy and certificate of insurance and has a duty to produce such records before the Tribunal, if it chose to raise a contention to decide which it is necessary for the Tribunal to look into the nature and terms and conditions of the policy. As observed by the Supreme Court in Jugal Kishore's case 1988 ACJ 270 (SC), the duty is greater in case of instrumentality of the State, such as, the public sector insurance company which is under an obligation to act fairly. Where the insurance company wishes to raise a defence against liability in excess of the statutory liability it should raise a specific plea and produce a copy of insurance policy. Parties are required to produce documents before the Tribunal at the earliest stage. If for any reason a party is prevented from producing documents at an early stage it is open to the party to satisfy the court about the existence of reasons which prevented it from producing documents at the relevant time.
11. In the present case the insurer did not produce the copy of the policy before the Tribunal or even in this court. Learned counsel for the appellant stated that the owner of the vehicle produced the original policy before the Tribunal which received the same. Our attention is invited to page 45 of File 'D' of the Tribunal records in M.A.C. 48 of 1987. This purports to be a policy in printed proforma. The entries are seen made in pencil. It does not bear the signature of any person authorised to sign on behalf of the insurer. Therefore, no reliance at all can be placed on this document. We requested the learned counsel for the appellant to go through the document and tell us whether it specifically restricts the liability of the insurer to the statutory limit in regard to the passengers. Learned counsel after studying the document admitted that there is no specific clause. The entire argument of the learned counsel for the appellant regarding restricted liability of the insurer is based on a photocopy of the policy seen in his file. Learned counsel showed the photocopy to us. The copy contains printed condition regarding the limit of liability of the insurer but the copy shown to us by the learned counsel for the appellant does not tally with the unsigned copy found in the Tribunal records. Even this copy in the custody of the appellant has not been produced before the Tribunal or in this court. The insurer is admittedly in possession of records which according to it would prove that the insurer had assured only statutory liability in regard to the passenger. The appellant failed to produce the document or documents before the Tribunal or in this court. Necessarily, an adverse inference has to be drawn against the appellant as it failed to perform its duty of making available the documents to the Tribunal or the appellate court.
12. For the above reasons, we sustain the conclusion of the Tribunal that the insurer has failed to prove that the policy is an 'Act only' policy and the liability of the insurer is only to the extent of Rs. 15,000/- per passenger.
13. No other contentions have been urged before us. We dismiss the appeals but under the circumstances, without costs. It is made clear that interim compensation paid, if any, and further amounts paid, if any, during the pendency of the appeal will go in deduction of the compensation payable under the impugned awards.