New India Assurance Company Ltd. vs Urmila Wd/O Sudhakar Gangare And ...
2004 Latest Caselaw 581 Bom

JUDGMENT

Anoop V. Mohta, J.

1. This appeal has been preferred by the appellant M/s New India Assurance Company Limited, whereby challenged the award dated 13-3-1985, in Claim Petition No. 9/1982, passed by the Motor Accident Claims Tribunal, Nagpur, granting of compensation of Rs. 1,00,000/-, if beyond the restricted liability of Rs. 50,000/-

2. An accident took place on 17-8-1981 of one Dr. Sudhakar Ganjare, who expired on 20-8-1981. On 11-2-1982, a claim petition was filed by his widow Urmila and minor son Abhijit claimed Rs. 1,00,000/-. Appellant herein, original respondent No. 3, resisted the claims and submitted to it's statutory liability to the extent of Rs. 50,000/- (fifty thousand only). No appeal is filed by the owner this appeal is filed by appellant Insurance Company, only.

3. As the controversy is restricted to the extent of the liability of the Insurance Company, the basic facts are not in dispute, hence this appeal can be disposed of without going into the details and further merits of the matter. The relevant Section of Motor Vehicles Act, 1938 (for short 'the Act of 1938'), is reproduced as under:

"95 (2) (a) Where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any arising under the Workmen's Compensation Act, 1923, in respect of the death of or bodily injury to employees (other than the driver), not exceeding six in number, being carried in the vehicle.

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

(i)..

(ii)...

(1)...

(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this Section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person of those classes of persons."

4. In reply to the claim petition filed by the respondent herein, the appellant-original respondent No. 3 in its written statement dated 17-6-1982, made positive assertion that the statutory liability of this defendant is restricted to the Rs. 50,000/- only. There is no dispute that no evidence was led by the Insurance Company. The owner of the vehicle respondent No. 3, lead the evidence, but, there is no dispute or any reference to the policy in question. The petitioners/claimants evidence had also nowhere referred or disputed in any way the nature or existence of liability flowing from the said policy. There is no dispute that the said policy or liability of the insurance company, in any way, disputed by any party. There was no 4challenge either to the policy in question or to its liability.

5. The learned Counsel appearing for the respondents have resisted the appeal basically on the ground that, the insurance company failed to produce and prove the policy in question by leading evidence. This aspect is also undisputed, that no evidence was lead by the insurance company. The only case of the insurance company-appellant is that the policy in question was a part of the record, but the learned Tribunal failed to take into consideration the said policy. The learned Judge, in fact in para No. 18 has observed that, the policy has not been filed on the record.

6. This rival contentions further raises an issue, whether there is a need of proving the policy on record, as per the Evidence Act, and/or by not placing the said policy on the record by following due procedure of law, by that itself, is sufficient to declare and/or to hold that the liability was unlimited. By the impugned judgment, the learned Motor Accident Claims Tribunal, awarded the of Rs. 1 Lakh, jointly and severally, against the owner and the insurance company.

7. The learned Counsel appearing for the appellant, has basically relied on , New India Assurance Company Ltd. v. C.M. Jaya and Ors. The law as settled by the Apex Court, by interpreting the provisions of Section 95 of the Motor Vehicles Act, (for short 'the Act') further clinches the issue, so far as the liability of insurance company in such cases. The relevant paras are 5 and 13.

"5. 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."

"13. In the circumstances, we hold that the liability of the appellant-insurance company is limited to Rs. 50,000/- as held by the Tribunal. In the view we have taken, it is unnecessary to go into the question relating to either maintainability of cross-objection before the High Court against the appellant alone or as to the enhancement of compensation when the owner and driver have not filed appeal against the impugned Judgment." It may be mentioned here that the Apex Court in the case of British Indian General Insurance Company Ltd. v. Maya Banerjee and Ors. reported in 1986 ACJ 946, interpreted the same Section 95(2)(b)(1), as amended, at the relevant time.

8. Considering the settled provision of the law, the submissions made by the Advocates appearing for the claimants/respondents, as based on 1989 ACJ 41 Delhi, Chandro Devi and Ors. v. Jit Singh and Ors., wherein, it is held that insurance company or such party if failed to prove on record the insurance policy as per the provision of Evidence Act, the liability of the insurance company is unlimited cannot be accepted. In the facts and circumstances, of that particular case it is held that the insurance company failed to prove the insurance policy in respect of both the vehicles, as the insurance policy was not placed on the record, therefore, held that the insurance company is liable to pay compensation to the appellant in that case.

9. I am of the view, that as in the present case, there is no substantial dispute raised about the existence of the policy and as there is no substantial dispute about the quantum of amount of liability, as expressly mentioned in the written statement by the insurance company and as owner was party to the proceedings and moreover the claimants/respondents No. 1 to 3, never raised any objection or any grievance about the existence or liability of the insurance company. In this background it cannot be said that the Tribunal is free to declare that the insurer or such company have unlimited liabilities. One cannot overlook the existing statutory provisions based upon which, such policy or such contract between the parties are normally entered into. There cannot be any dispute that the insurance company still, can accept additional or any sort of contract, whereby they can accept the additional liability by accepting or deciding the requisite premium. There is no dispute that the statutory liability as contemplated under the Act and the contractual liability if agreed between the parties, can be extended. The facts and circumstances of the case with those details concepts can be gone into, if necessary. In the present case, the original policy which is a part of the record, which shows the liability of the insurance company is restricted to Rs. 50,000/ only. In view of this, I see that the order and the judgment passed by the Motor Accident Claims Tribunal, Nagpur by observing in para No. 18, that the policy has not been filed on the record is not correct. The policy is a part of the record. In the facts and circumstances of the case, and in view of no specific challenge to the substantial averment made in the written statement made by the insurance company, and for want of additional evidence or proof of such insurance policy that, itself cannot be a reason to go beyond the statutory liabilities, as provided under the Act.

10. I am of the view that admittedly, in the present case the impugned order is of dated 13-3-1985. The appeal is pending since more than 19 years. Even though as observed above, the liability of the appellant is restricted to Rs. 50,000/- still I am of the view that the insurance company to pay the total amount of Rs. 1 lakh to the claimants. I am of the view that, in the interest of justice and to avoid further complications, the operative part or except above observation, the Judgment is maintained. It is relevant to observe that even the Supreme Court in British Indian General Insurance Company, (supra) has in para Nos. 3 and 4, observed as under :

"3. In this view of the matter we agree with learned Counsel for the appellant that the insurer's liability in the instant case could not have been beyond Rs. 20,000/- and to that extent the High Court was wrong.

4. Even though we have accepted the appellant's contention about the extent of liability, yet we do not propose to interfere with the direction that the insurer would pay the entire amount of Rs. 30,000/- as at this belated point of time, it may be difficult for the widow of the victim to recover the compensation from the owner."

After observing the liabilities of the insurance company, as argued in that case and as argued in this case also, I decline to interfere with the order after such long lapse of time. I am of the same view, as admittedly, the time gap is of more than 19 years.

11. Mr. Sudame, the learned Counsel appearing for the Insurance Company, however submitted that liberty may be granted to the appellant to take appropriate steps, if advised, to recover the balance amount of Rs. 50,000/- from the owner of the vehicle. This submission is based on the judgment i.e. , National Insurance Company Ltd, v. Savitridevi, whereby the Supreme Court has also allowed the insurance company to recover the amount from the owner, however, directed the insurance company to make the payment to the victim or injured. Considering this request of Mr. Sudame, I am granting liaberty to the insurance company, if so advised. However, one cannot overlook the fact that the original claim petition was of the year 1982, and the recovery at this stage from the original owner may be a difficult task. However, the insurance company may take a sympathetic view.

12. The record further shows that while admitting the First Appeal, there was stay on the execution of the balance amount of Rs. 50,000/-. The appellant has infact deposited the remaining amount of Rs. 50,000/- with the Tribunal. As the appeal itself is disposed of in view of the above terms, the interim order granted shall also stand vacated. The claimant is entitled for the total amount forthwith and accordingly appellant to proceed. In view of the above observations, the appeal is disposed of. No order as to costs.