Amar Jeet Singh vs Smt Santosh And Others
2018 Latest Caselaw 1334 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 24
 
Case :- FIRST APPEAL FROM ORDER No. - 720 of 1995
 

 
Appellant :- Amar Jeet Singh
 
Respondent :- Smt Santosh And Others
 
Counsel for Appellant :- Ashok Mehta,Gagan Mehta
 
Counsel for Respondent :- Sudhir Kumar Jaiswal, P.N.Srivastava, S.L.Mishra, Sudhir Kumar
 

 
Hon'ble Saral Srivastava,J.

1. The present appeal has been preferred by the owner of a Bus No. UPP-1918 challenging the award dated 22.05.1995 passed by the Court of the Motor Accident Claim Tribunal (Special Judge), Muzaffar Nagar in M.A.C. No.294 of 1995 to the extent it fastens the liability upon the owner appellant.

2. Claimant respondents no.1 to 6 instituted a claim petition for the death of Ranvir Singh Pundir in an accident stated to have taken place on 30.04.1985 with Bus No.UPP-1918. The Tribunal has awarded Rs.1 lakh alongwith 9% interest to the claimant respondents as compensation.

3. The Tribunal while apportioning the liability has held that since it was insured only for third party and under the terms and conditions of the policy, the liability of the Insurance Company was limited to Rs.50,000/-, therefore, the Insurance Company was liable to pay Rs.50,000/- out of the awarded amount and the balance amount i.e. Rs.50,000/- to be paid by the owner appellant.

4. Learned counsel for the appellant has urged that the policy of the vehicle was a comprehensive insurance policy and, therefore, the entire liability to pay the compensation is of Insurance Company. He submits that the finding of the Tribunal that the insurance policy was only with regard to third party is illegal and perverse.

5. Rebutting the aforesaid submissions, learned counsel for respondents submits that a categorical finding has been recorded by the Tribunal that the insurance policy was with regard to third party. He submits that the insurance policy was proved by D.W.1 Rakesh, Development Officer, Oriental Insurance Company, who had stated on oath that Policy No. 22292/000/01320/30/84/01493 was for third party. He further submits that the appellant owner did not lead any evidence to rebut the testimony of D.W. 1 Rakesh.

6. Learned counsel for the respondents further submitted that in view of Section 95(2) (b) (ii) of Motor Vehicles Act, 1939, in absence of any special contract covering the risk of third party unlimited, the liability of the insurance company is only upto Rs.50,000/-. In this regard, he has placed reliance upon the judgement of the Supreme Court in New India Assurance Company Limited Vs. Shanti Bai 1995 SCC (2) 539. 

7. It would be useful to notice Section 95(2) (b) (ii) of the Motor Vehicles Act, 1939 in the context of the present case and the same is reproduced herein-below:-

"Section 95(1) : ......

(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident tip to the following limits, namely -

(a) ......

(b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment.

(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;

(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;"

8. The Apex Court in Shanti Bai (supra) has held that comprehensive policy only entitles the owner of the vehicle to claim reimbursement of entire amount of loss or damage suffered by him. It does not mean that the limit of liability with regard to third party becomes unlimited or higher than the statutory liability. Paragraph 9 of the judgement of the Apex Court is reproduced herein-below:-

"9. In the present case, the premium which has been paid is at the rate of Rs. 12/- per passenger and is clearly referable to the statutory liability of fifteen thousand rupees per passenger under Section 95 (2)(b)(ii) of the Motor Vehicles Act, 1939. In the present case, there is no special con- tract between the appellant-company and respondent No. 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed. out by this Court in the case of National Insurance Co. Ltd. v. Jugal Kishore & Ors., (supra) comprehensive policy only entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimohammed v. P.A. Ahmedkutty & Ors., (1987 (3) SCR 1149). The appellant-company is, therefore, entitled to succeed to the extent that it has been directed to pay to respondents 1 to 3 any amount in excess of Rs. 15,000/-."

9. In the present appeal, the record of the lower court was summoned but it appears that the policy of the vehicle was misplaced from the original record.

10. This Court on 27.10.2017 was pleased to pass the following order:-

"This appeal is of the year 1995. The policy of the vehicle is not on record. Both the learned counsel for the parties wants time to verify the same.

List this matter on 11sth December, 2017.

11. This Court again on 16.05.2018 was pleased to pass the following order:-

The Insurance Company shall file copy of the original policy on or before 23.5.2018 as a last chance as in the written statement they have mentioned the number of policy.

List on 23.5.2018.

12. This Court also on 23.05.2018 was pleased to pass the following order:-

Learned counsel for the appellant prays for and is granted a week's further time to verify the policy of the vehicle.

List thereafter."

13. When the matter was taken up, the learned counsel for the parties showed their inability to produce the copy of the policy of the vehicle as the policy is of the year 1984. However, with the consent of the parties, the appeal is being decided on the basis of the available record.

14. I have considered the rival submissions of the parties and perused the record.

15. The Tribunal has recorded a categorical finding that the insurance policy was only with respect to third party and under the policy, the liability of the insurance company was to the extent of Rs.50,000/- only. The policy was proved by D.W.1 Rakesh, who was Development Officer of the Company and thus, the statement of D.W. 1 Rakesh in absence of any rebuttal from the owner shall be treated to be correct.

16. Learned counsel for the appellant could not point out anything from the statement of D.W. 1 Rakesh that the statement of D.W.1 Rakesh is false or incorrect. Thus, the finding of the Tribunal that the vehicle was insured only for third party and the liability of the insurance company was only upto Rs.50,000/- is a finding of fact and do not call for any interference by this Court.

17. In the instant case, even of assuming, that the policy was comprehensive one, there is nothing on record to suggest that there was any agreement between owner and insurer of the vehicle to extend the limit of liability with regard to third party risk unlimited or higher than statutory liability. Thus, in absence of any specific agreement between owner and insurance company extending the limit of liability of Insurance Company for third party unlimited or more than statutory liability, the Tribunal was right in holding the liability of the insurance company upto Rs.50,000/- in view of the decision of the Apex Court in the case of Shanti Bai (supra).

18. Lastly, learned counsel for the appellant has urged that the compensation awarded by the Tribunal is on higher side.

19. In my opinion, the compensation awarded by the Tribunal is just and proper particularly in view of the fact that the deceased was employed in Punjab National Bank.

20. Thus, for the reasons given above, the appeal lacks merit and is accordingly dismissed.

21. Interim order, if any, is vacated. There shall be no order as to costs.

Order Date :- 3.7.2018

S.Sharma