Delhi High Court
Oriental Insurance Co. Ltd. vs Joginder Pal Singh And Ors. on 7 October, 2004
Equivalent citations: I (2005) ACC 60, 115 (2004) DLT 488
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
1. This appeal is directed against the judgment dated 15.7.1994 of the Motor Accident Claims Tribunal, New Delhi in Suit No. 138/1988 whereby the Tribunal has awarded a sum of Rs. 1,80,000/- together with 12% interest on account of death of Sh.Gurbachan Singh aged 50, a three wheeler scooter driver involved with the accident on 24.4.1988 with vehicle no. DLP 6462 driven by Prakash Chand, the first respondent.
2. Brief facts of the case are as follows:-
".......on 21.4.1988 at about 4/4.30 p.m. deceased Gurbachan Singh was sitting in his three wheeler scooter No. DLR 3349 waiting for the passengers near the gate of Gymkhana Club at Kamal Ata Turk Marg when a taxi bearing No. DLP 6462 being driven recklessly, rashly and negligently by respondent No. 1 came from the side of Ashoka Hotel and hit the stationary scooter of which Sh.Gurbachan Singh suffered multiple injuries which ultimately proved fatal. Deceased Gurbachan Singh was removed to Safdarjang Hospital immediately after the accident in unconscious condition. He did not come out of coma and succumbed to the injuries on 22.4.88.
The petitioners claimed that respondent no. 1 was driving taxi No. DLT 6462 in a most reckless and negligent manner. He was not keeping proper look out and the accident could have been avoided had the respondent No. 1 been little careful and had taken due care and caution. It is alleged that respondent No. 1 not only did not keep proper look out but was driving in utter disregard and violation of traffic rules and it is on account of his rash and negligent driving that the accident occurred resulting in untimely death of Sh.Gurbachan Singh who was having good physique and would have lived at least for next 25 years. The untimely death of the deceased has deprived the claimants of their source of maintenance. The petitioners have, therefore, claimed that respondent no. 2 owner of the offending taxi are severally and jointly liable to compensate the petitioners for loss of their dependency. Respondent No. 3 is stated to be liable to indemnify the award of compensation being the insurer of the offending taxi.
Notice of the claim petition was given to all the respondents who have contested the claim petition on various grounds. Respondent no. 1 and 2 in their joint written statement disclaimed the liability to pay compensation to the petitioners on the ground that accident was the result of negligent driving on the part of deceased himself. According to the version of accident given by respondent No. 1 and 2 in their joint written statement, the deceased was driving his three wheeler scooter and he overtook the taxi of respondent No. 1 from the wrong side and after overtaking the taxi, the deceased saw a passenger waiting for the scooter and he immediately applied brakes without giving any signal and without caring for the coming traffic. Due to sudden halt of the scooter, respondent no. 1 could not avoid the collision. The left bumper of the taxi struck against rear right side of the scooter. Respondent No. 1 was able to stop his taxi without moving a step further from the place of impact. Respondent No. 1 and 2 have also disputed the right of the claimants to seek compensation. It is alleged that petitioner No. 1 son of the deceased was major and not dependent on the earnings of the deceased and similarly petitioner No. 4 being married daughter of the deceased was not dependent on him and, therefore, not entitled to any compensation. The amount of compensation sought by the claimants has also been disputed on the ground that it was exorbitant and not in proportion to the earnings of the deceased.
Respondent no. 3 also refuted the claim of the petitioners that accident took place due to rash and negligent driving of offending taxi. While admitting that the offending taxi was insured with it, respondent No. 3 maintained that its liability was limited to Rs.50,000/- only.
On the pleadings of the parties, following issues were framed:
1. Whether the accident took place due to the rash and negligent driving on the part of the driver of vehicle No. DLT6462?
2.Whether the respondent No. 3 has a limited liability, is so, to what extent?
3.To what amount of compensation, if any, are the petitioners entitled and from whom?
4.Relief."
3. It is contended by counsel for the Insurance Company, the appellant herein that liability of the Insurance Company was limited to Rs.50,000/- only. He draws my attention to Section 95 of the Motor Vehicles Act (hereinafter referred to as the Act), 1939 as amended in 1982. He contends that since Section 95 of the Act limits the liability of Insurance Company to Rs.50,000/-. Any amount claimed higher than this amount should have been proved by the claimant and/or the owner of the vehicle.
4. I have heard counsel for the appellant and the respondent and gone through the judgment under challenge. It appears to me that the Tribunal while disposing of this objection has arrived at the following conclusions:-
"Respondent no. 3 M/s Oriental Insurance Co.Ltd. While admitting that the offending vehicle was insured and the insured was respondent no. 2, maintained that its liability was limited to Rs.50,000/-. However, no evidence has been led by respondent no. 3 to prove this plea. Respondent no. 3 did not issue any notice to the owner of the offending vehicle to produce the original policy of insurance. Since, respondent no. 3 claimed that its liability was limited to Rs.50,000/-, onus was on the insurance company to have adduced evidence to this effect. In the absence of policy of insurance or contract of insurance it cannot be said that liability of the insurance company was limited to Rs.50,000/-. It is settled law that if the insurance company failed to prove policy of insurance, it is liabile to pay the entire amount of the award passed against the owner of the insured (see 1983 ACJ 424)."
5. Since the Tribunal has disposed of this issue on the ground that the Insurance Company while admitting that the vehicle was insured has failed to prove the insurance policy, it cannot take cover under the statutory provisions which lays down the minimum and not the maximum that can be covered by the policy. Further this being a question of fact and not a question of law it requires no further adjudication. I find no ground to interfere with the judgment under challenge. FAO 287/1994 is dismissed.
6. At this stage counsel prays than an application under Order 41 Rule 22 has been filed and wants to place on record the policy but no such copy has been filed in this court along with this application. CM.1972/1995 is dismissed accordingly. CM.1973/95 also stands dismissed. Any other pending application shall also stand dismissed.
