Allahabad High Court
Shareef Ahmad vs Smt.Surjo & Others on 15 May, 2013
Bench: Rajes Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 5
Case :- FIRST APPEAL FROM ORDER No. - 104 of 1996
Petitioner :- Shareef Ahmad
Respondent :- Smt.Surjo & Others
Petitioner Counsel :- A.D.Saunders
Respondent Counsel :- A.K. Saxena,S.K. Mehrotra
2- Case :- FIRST APPEAL FROM ORDER No. - 105 of 1996
Petitioner :- Shareef Ahmad
Respondent :- Inder & Others
Petitioner Counsel :- A.D.Saunders
Respondent Counsel :- A.K. Saxena,S.K. Mehrotra
AND
3-Case :- FIRST APPEAL FROM ORDER No. - 106 of 1996
Petitioner :- Shareef Ahmad
Respondent :- Chandru & Others
Petitioner Counsel :- A.D.Saunders
Respondent Counsel :- A.K.Saxena,S.K. Mehrotra
Hon'ble Rajes Kumar,J.
Heard Sri A.D. Saunders, learned counsel for the appellant and Sri S.K. Mehrotra, learned counsel for the Insurance Company.
These are three appeals by the owner of the vehicle against the order dated 30.11.1995.
Learned counsel for the appellant submitted that under the Insurance Policy apart from premium payable to cover the risk of third party, a separate premium for passengers at Rs.672/- was paid. Copy of the Insurance Policy is Annexure-1 to the affidavit. The insurance was a comprehensive insurance and there was unlimited liability of the Insurance Company. The Tribunal has erred in fixing the liability of Rs.15,000/- only on the Insurance Company and the balance amount has been held liable to be paid by the appellant, the owner of the vehicle.
Learned counsel for the Insurance Company submitted that the premium has been charged as per the tariff. As per tariff, apart from statutory premium, in respect of third party it also provides to cover the risk of the passengers of the passengers vehicle. The tariff provides four different premiums to cover the risk of the passengers, namely, for Rs.15,000/-, Rs.20,000/- and Rs.30,000/- the premium was Rs.12/-, Rs.23/ and Rs. 30/- and for unlimited liability Rs.50/-. The premium is to be paid as per the tariff which is binding upon the Insurance Company as well as on the insured. In the present case, the bus, which was involved in the accident and belonged to the appellant was of 56 seaters. The appellant has paid the premium at Rs.672/- @ Rs12/- per passenger. Therefore, as per the tariff, it covers the liability only to the extent of Rs.15,000/- per passenger. If the appellant would have paid the premium @ Rs.50/- per passenger, the liability of the Insurance Company would have been unlimited.
I have considered rival submissions and I do not find any substance in the argument of learned counsel for the appellant.
The premium was payable as per the tariff, which was binding upon the Insurance Company as well as on the insured. The tariff provided four different premium to cover the risk of the passengers, namely, for Rs.15,000/-, Rs.20,000/- and Rs.30,000/- the premium was Rs. 12/-, Rs. 23/- and Rs.30/- and for unlimited liability Rs.50/-. In the present case the premium has been paid as follows:
SCHEDULE OF PREMIUM
OWN DAMAGE BASIC
As per END IMT 23
Add: 3% on Extra Electrical or Electronic fitting as per END IMT. 71
Add for % on I.E.V.
Less........% Discount for excess of Rs.......(Max. Rs.......)
As per END. IMT. 1 Less: Flood & E.Q.
Add for Riot & Strike 0.25% of ..I.L.V. as per END IMT. 21
Add...............
Add.............
.....% No Claim Bonus
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
440/
1320/
1760/
300/
---------------------
1460/
219/
1241/
LIABILITY TO PUBLIC RISK
Add for L.L. 10 passengers
as per END IMT. 13
Limit per passenger Rs..........
(Maximum Rs.....as per M.V.Act, 1939
-Add for L.L. to paid driver and or/
cleaner as per END IMT. 16
Terr. Cover
-Add for insured T.P. Limit
Section II 1 (I) Unlimited
Section II 1 (II) Rs..............
Add for ......Passengers
COMPREHENSIVE PREMIUM (A+B)
Lose : 10% Sp. Discount (II que)
NET PREMIUM DUE (ROUNDED OFF)
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
240/-
16/-
35/-
75/-
672/-
2279/-
114/-
2165/-
Admittedly, the appellant has paid a sum of Rs.672/- as a premium for the passengers which was at the rate of Rs.12/- per passenger for 56 seaters and, therefore, it only covers the risk of Rs.15,000/- per passenger and, therefore, the insurer's liability was only to the extent of Rs.15,000/-. The Tribunal has rightly held so.
The Constitution Bench of the Apex Court in the case of New India Assurance Co. Ltd. Vs. C.M. Jaya and others, reported in 2002 (3) T.A.C. 434 (S.C.) has held as follows :
"Thus, a careful reading of these decisions clearly shows that the liability of the insurer is limited, as indicated in Section 95 of the Act, but it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy, the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability. This view has been consistently taken in the other decisions of this Court.
In the light of what is stated above, we do not find any conflict on the question raised in the order of reference between the decisions of two Benches of three learned Judges in Shanti Bai and Amrit Lal Sood aforementioned and, on the other hand, there is consistency on the point that in case of an insurance policy not taking any higher liability by accepting a higher premium, the liability of the Insurance Company is neither unlimited nor higher than the statutory liability fixed under Section 95 (2) of the Act. In Amrit Lal Sood's case, the decision in Shanti Bai is not noticed. However, both these decisions refer to the case of Jugal Kishore and no contrary view is expressed.
In the premise, we hold that the view expressed by the Bench of three learned Judges in the case of Shanti Bai is correct and answer the question set up in the order of reference in the beginning is as under:
"In the case of Insurance Company not taking any higher liability by accepting a higher premium for payment of compensation to a third party, the insurer would be liable to the extent limited under Section 95 (2) of the Act and would not be liable to pay the entire amount."
In view of the above, all the three appeals have no merit and are accordingly dismissed.
15.5.2013
OP
