Jammu & Kashmir High Court
Oriental Insurance Co. Ltd. vs Narinder Kour And Ors. on 3 March, 1997
Equivalent citations: 1998ACJ1140, AIR1998J&K17, AIR 1998 JAMMU AND KASHMIR 17
JUDGMENT G.D. Sharma, J.
1. This appeal is directed against the award dated 7-5-1992 given by the learned Presiding Officer, Motor Accidents Claims Tribunal, Ramban, whereby he fastened the liability of the appellant to the extent of Rs. 50,000/- with interest @ 6% per annum till 1988 and thereafter @ 12% per annum till the payment is made. The appellant is the insurer of the offending vehicle tourist Bus No. 4199 JKN, which was owned by respondents 7 and 8. This accident took place on 24-3-1974 (about 23 years ago) on the Jammu-Srinagar National Highway at a place known as Digdol. Deceased Attar Singh was a contractor by profession and aged about 33 years. He was travelling as a passenger in the said bus, when the accident took place and died instantaneously. The accident was the result of rash and negligent driving of the said vehicle by respondent No. 5 (Om Parkash). Respondent No. 1 herein is the unfortunate widow and Respondents 2, 3 and 4, the unlucky orphans of the said deceased. Deceased Attar Singh was the sole bread winner of the family. The mother of the deceased pined away with grief and met with untimely death because she could not bear with the shock.
2. The claim petition was originally filed on 1-5-1974 in the J. & K. Tribunal and when it was bifurcated, the trial commenced in the Divisional Tribunal. After the creation of District Tribunal, it was transferred to Claims Tribunal, Bhaderwah. After sometime, additional Claims Tribunal was created for Ramban where the final trial was held. Thus, after a protracted trial of the proceedings for 18 years, the claim petition was decided on 7-5-1992 and the claim compensation was assessed at Rupees Three Lakhs Sixty Thousands with costs and the interest as stated above. On the basis of the terms of the insurance policy, the limit of the appellant-insurer to pay the claim compensation was fixed at Rupees 50,000/- along with interest as stated above.
3. The insurer through the medium of this appeal has challenged the above stated findings of the Claims Tribunal on the grounds that the deceased Attar Singh was a passenger in the offending vehicle and in terms of Section 95(2)(b)(i)(4) of the Motor Vehicles Act, the liability of the insurer was only Rupees 5,000/-. On facts, it is also pleaded that the learned Presiding Officer had fell into error, when he ignored to apply Clause II-I (i) of the policy of the insurance which provided for the limits of liability in respect of death or bodily injury to any person caused by or arising out of the use of motor vehicle but he wrongly applied Clause II-I (ii), which pertains to damage to property caused by the use of motor vehicle. It is further submitted in para No. 9 of the memo of appeal that overall liability of the appellant in respect of any number of claims in connection with any one such vehicle arising out of one cause was Rs. 50,000/-.
4. Heard the arguments.
5. Mr. H. L. Choudhary, the learned counsel of the appellant has in his arguments reiterated the grounds of the appeal and further stated that the statutory liability of the appellant insurer to indemnify the insured was to the extent of Rs. 5000/- only but the learned Presiding Officer of the Motor Accidents Claims Tribunal fell into error when he fixed the liability at Rs. 50,000/-. In order to buttress his arguments, he cited the case of M. K. Kunhimohammed v. P. A. Ahmedkutty 1987 Acc CJ 872 : (AIR 1987 SC 2158), wherein the liability of the insurer of the bus was found limited to Rs. 5000/-. This finding was given on the provisions of Section 95 of the Motor Vehicles Act as unamended. It is urged that the liability of the insurer appellant has also arisen under the unamended Section 95 and its limited extent was only up to Rupees Five Thousand.
6. Mr. D. K. Khajuria, the learned counsel for the respondents has controverted the arguments by stating that in view of the finding of the Apex Court (given by larger Bench) in the case of Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi, AIR 1981 SC 2059; the expression "any one accident" found in Section 95 of the Act signifies as many accidents as number of persons injured in accident. The limit of compensation of Rupees 20,000/- in that case was extended to each claimant. Elaborating his argument, Mr. Khajuria has contended that in the present case, the death of Attar Singh passenger was one accident so far his claim extended and the limit of the insurer to pay the compensation was stretched to the extent of Ks. 50,000/-. In this case also, there were as many accidents as were the number of injured. He has further contended that the insurer had not raised any such plea in the Tribunal that its liability was limited to the statutory liability. In this view of the matter, such a plea after a gap of 18 years is not available in appeal. Also, no issue regarding limited liability of Insurance Company (Appellant) herein was got framed and no argument was advanced before the Tribunal and now in appeal, the appellant is estopped from raising the plea.
7. After considering the respective contentions of the learned counsel for the parties and perusing the record, it is found that the appellant-insurer in its objections, before the Tribunal, had raised the specific plea that "insurer has limited liability as per the terms of the policy having been issued in favour pf said vehicle". On the pleadings of the parties, four issues were struck in the case. Issues Nos. 1 and 2 were regarding the rash and negligent driving of the offending vehicle by respondent No. 5 herein and the resultant death of the passenger, Attar Singh, Issue No. 3 was to the following effect, "on proof of issues Nos. 1 and 2, are the petitioners entitled to receive compensation from the respondent ? If so, in what proportions and to what amount ? O.P.P. Issue No. 4 was regarding the relief. It is thus established that the petitioner-appellant had not got framed any issue of its limited liability. The trial of the proceedings continued for 18 years in different Tribunals and the claimants being the widow and the minor orphans of the deceased were hoping against hopes to get the relief. Even after a gap of 23 years, they have not received any claim from the insurer who after getting its time barred appeal admitted raised the plea of statutory liability or in the alternative factual liability to the extent of Rupees Five Thousand only. It is to be noted that the Motor Vehicles Act has undergone a sea change by way of amendments and incorporations of the relevant provisions whereby there is a tilt in favour of the victim of the accident. The value of an Indian life lost in the Motor Vehicle accident has been increased and even on the basis of no fault liability a fixed sum of Rupees Fifty Thousand is made payable. Similarly, the limited liability of Rupees Five Thousand has been done away by omitting Section 95 and substituting Section 147 which does not contain any such inhibition of limit of liability in respect of a passenger of the offending vehicle. Had such a plea found a place in the form of an issue, the respondents would have rebutted the same by leading evidence. The Motor Vehicles Act has created Tribunals for awarding speedy claims to the deserving claimants but in this case, the victims are facing the pleas of limited statutory liability of the insurer on the basis of unamended Section 95 to the extent of Rupees Five Thousand even after a gap of 23 years. The acceptance of such a plea will run contrary to the spirit of the Act and destroy the raison d'etre of the newly inserted Section 147. The maxim salus populi est suprema lex which means that the regard for public welfare is the highest law is attracted to the facts of the case in hand. The welfare of the dependents of the victim of the accident is the basic postulate for the immunity of such an afterthought plea. Respondents 1 to 4 herein cannot be deprived of the benefits of the beneign provisions of the Act which have been amended or incorporated by way of curitive amendments effected in the Act and they are deemed to have retrospective effect. The factual plea on the basis of the terms of the policy is also not available to the appellant because respondents will be deprived of the right of rebuttal. Similar view was taken by the Punjab and Haryana High Court in the case of Gurmukh Singh Nagi v. Sheo Karan, 1996 Acc CJ 706, where the plea of Insurance Company regarding its limited liability as per statute did not find favour as no issue was framed. The insured would have proved his case in case of issue being framed as additional premium was paid by him.
8. Viewing the case in its true perspective, it is found that respondents 1 to 4 have been rightly awarded aggregate amount of insured amount of Rupees Fifty Thousand on the ratio of the decision of AIR 1981 SC 2059 (supra) and there is no merit in this appeal, which is accordingly dismissed, with costs quantified at Rupees Two Thousand.
9. The office is directed to send back the record of the Motor Accidents Claims Tribunal, Ramban.