Calcutta High Court
New India Assurance Company vs Smt. Uma Jhunjhunwala & Ors. on 28 April, 1999
Equivalent citations: I(2000)ACC180, 2000ACJ572, (1999)2CALLT563(HC), AIR 2000 CALCUTTA 22, (1999) 2 CALLT 563, (1999) 3 ICC 543, (2000) 1 CIVLJ 463, (2000) 1 TAC 173, (2000) 1 ACC 180, (2000) 1 ACJ 572
JUDGMENT V.K Gupta, J.
1. The only point urged in this appeal filed by the insurance Company against the Award dated 29th April 1993 by the learned Sixth Bench of the City Civil Court at Calcutta in MMACC No. 180 of 1983 !s with regard to the limited liability of the appellant insurance Company. No other point was urged.
2. Brief facts leading to the filing of this appeal are that the husband of Respondent Uma Jhunjhunwala and the father of other respondents died in a Motor Accident on 8-12-1982. The deceased was serving as an Officer in the Oriental Fire and General insurance Co. Ltd. at the relevant time. He was aged about 48 years and in 1982 his monthly income is stated to be Rs. 4000/-. On 8-12-82 while he was alighting from his private Car No. WMB-7460. a lorry bearing No. APT 2470 ran over him. after dashing against the Car from which the deceased had alighted. As a result of this accident the deceased suffered injuries. He was removed to the Hospital by the Traffic Police. However on arrival at the hospital he was declared brought dead by the Doctors. The respondent claimants filed a claim petitioner under section 110A of the Motor Vehicles Act 1939 in which the owner and the appellant-insurance Company, being respondents therein filed written statements. Based on the pleadings of the parties the following four issues were framed by the Tribunal :
Issues
1. is the case maintainable in law;.
2. is the case time barred?
3. Did the accident take place due to the rash and negligent driving on the part of the driver of the owner of the Impugned vehicle?
4. is the applicant entitled to get any compensation for this accident? If so, to what extent?
3. The Tribunal ultimately passed an award of Rs. 3,82.800/- with interest @ 15% per annum from the date of the filing of the claim petition till the recovery of the awarded amount. Since the appellant insurance Company was fastended with the liability of satisfying the entire amount awarded by the Tribunal, it has challenged the Judgment and award in the present appeal before this court only on the limited ground that the liability of the appellant in terms of the policy of insurance was limited to Rs. 1,50,000/-and that because of such limit of the liability, it was not obliged to indemnify the owner and thus satisfied the award for any amount over and above Rs. 1,50,000/-.
4. in the written statement filed by the appellant before the Tribunal, the defence regarding the limited liability of the appellant, apart from other defences has been stated in para-6 of the written statement. Para-G reads as under:--
"With reference to the statements made in clause Nos. 15, 16 and 17 of the said application, this opposite parly only admits that at the material time the use of vehicle No. APT 2470 was covered by a policy of insurance. This opposite party states that the liability as required to be covered under section 95 of the Motor Vehicles Act has been covered under a Policy of insurance and no further and wider risk or liability has been assumed by this opposite party. The conditions specified under section 96(2) of the said Act, have been duly incorporated in the said Policy of insurance and this opposite parly is entitled to avoid the liability for the violation of any of the said conditions by the owner opposite parly to which this opposite party craves reference at the time of hearing. This opposite party states that the liability of this opposite parly is not Joint with the owner opposite party but is distinct as an indemnlfler only and not exceeding the limit as specified in section 95 of the Motor Vehicle Act. This opposite parly furlher states that the driver who was alleged to have been driving the vehicle at the material time, did not possess the driving licence as required under the law. It is further stated that the alleged involved vehicle was not used for the purpose of the owner-opposite party at the material time, nor was it being used for a purpose for which a permit is required as provided for under the Motor Vehicles Act. in the premises, this opposite parly is not liable to indemnify the owner-opposite parly as alleged or at all. This opposite party craves leave to refer to the said policy of insurance at the time of hearing for ascertaining Its true meaning and purport thereof."
5. The question which thus requires our consideration in this appeal is as to whether the Tribunal erred in law in fastening the liability upon the appellant for the entire awarded amount and as to whether It should have confined such liability to the restricted amount of Rs. 1,50,000/- as has how been claimed by the appellant before us in this appeal.
6. As would appear from a reading of para-6 of the written statement filed by the appellant, the defence of the appellant with regard to the extent of Its liability has been couched in general terms and in an ambiguous and vague manner. Actually Para-6 appears to be a mere iteration of the general, roullne, run of the mill defences usually available and taken in all types of cases, without adverting to particular facts of the individual case or specifying in material particulars and in details, the exact nature of the defences. That is why, from the averments in para-6 of the written statement we have failed to notice any specific defence with regard to any limited statutory liability, the extent of such limit and the reasons as to why the liability is limited. The appellant has merely Iterated sections 95 and 96 of the Motor Vehicles Act 1939 and has not specifically averred as to how and in what manner, and why Its liability limited, and to what extent. Despite the aforesaid vague and ambiguous pleadings, the onus in any even to prove and establish that the appellant's liability was in fact limited rested squarely upon the appellant and It was forlhe appellant to discharge this onus. If a particular defence is raised, It is for the party raising such defence to prove it by leading evidence.
7. Let us now see and find out as to whether the appellant discharged such onus and, if so, in what manner.
8. Mr. Das, learned advocate appearing for the appellant with his usual vehemence has very strongly argued that appellant discharged such onus by producing in the Tribunal a true copy of insurance Policy No. 4313106883 which was issued on 2nd February 1982, and was valid from 3rd January, 1982 uptill 12th January 1983.
9. According to Mr. Das this policy clearly contained a stipulation that the limit of liability of the appellartt in respect of any claim or series of claims Irrespective of any one event was restricted to Rs. 1,50,000/-. We have seen the original record of the Tribunal and we do find that a true copy of an insurance Policy indeed formed a part of the record of the Tribunal but unfortunately this policy has neither been brought into evidence, nor admitted into evidence by any legitimately prescribed mode or method under the Evidence Act. More so, admittedly the appellant did not choose to lead any evidence, oral or otherwise, before the trial court to prove or establish its contention that the policy of insurance as issued by It covered only the statutory limited liability. If the appellant had raised a defence, even though in ambiguous, vague and bald terms that its liability was limited and not unrestricted, it was for the appellant and it was its duty to put forth before the Tribunal, by adducing legal an legally admissible evidence, the said fact of its liability being limited. According to us the only legally permissible way of doing so, was by leading oral evidence before the Tribunal and by proving through such oral evidence the contents of the policy of insurance, suggestive of the fact of that the liability was indeed limited, Unfortunately however, the appellant did not choose to do so. It did not lead any evidence at all. Merely filing a true copy of a document, without either proving the document itself or its contents by any recognised mode of proof or, without admitting the same into evidence, does not serve any purpose. The document filed in such a manner does not become evidence. in the absence of any evidence therefore, both oral or documentary, the Tribunal was JusUfled in coming to a finding lhat the appellant was liable to satisfy the award in its entirety. We must clearly observe that the appellant was under a legal and slatutory obligation to discharge the onus of proving the fact about its liability being limited, and this onus having not been discharged by the appellants, this fact cannot be said to have been proved in any manner, directly or indirectly.
10. For what we have said, we are of Uie view that the Judgment and award under appeal do not call for any interference or modification by us. By upholding the Judgment and award, we dismiss the appeal with costs throughout.
11. The appellant is held liable to satisfy the award in its entirely.
12. This court on 17.2.98 had directed the appellant to deposit an amount of Rs. 3,82,800/- with the Registrar, appellate side of this court. On such deposit being made, the Respondent-Claimants were allowed to withdraw a sum of Rs. 1.50.000/- from out of It and the remaining amount was directed to be deposited in a fixed deposit.
We direct that the respondent-claimants shall now be allowed to withdraw the remaining amount along with interest accrued thereupon uptill date. They shall also be at liberty to realise the balance of the awarded amount from the appellant.
The appeal stands finally disposed of.
P.K. Sen, J.
13. I agree.
14. Appeal disposed of