Orissa High Court

Basudev Guru vs Smt.Basantipanigrahi And Others on 13 December, 2021

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          A.H.O. No. 60 of 1994
In the matter of an appeal under Chapter VII, Rule 2(A) of the Rules of
Orissa High Court under Letters Patent.


    Basudev Guru                                ....            Appellant
                                     -versus-
    Smt.BasantiPanigrahi and others             ....         Respondents


Appeared in thiscase:-

          For Appellant          :     Mr. C.A.Rao, Sr.Advocate
          For Respondents        :     Mr. G.P.Dutta, Advocate

     CORAM:
     THE CHIEF JUSTICE
     JUSTICEA.K. MOHAPATRA

                               JUDGMENT

13.12.2021

A.K. Mohapatra, J.

1.Being aggrieved by order dated 3rd May, 1994 passed by the learned

Single Judge in M.A.No.386 of 1989 holding that the liability of the

insurer is limited to the extent of Rs.50,000/- in view of the provision

contained in section 95(2)(b)(i) of the Motor Vehicle Act, 1939 and the

balance amount of the awarded amount is payable by the owner insured

of the vehicle, the owner of the vehicle has preferred the present appeal.

2.The factual backdrop of the present case, bereft of unnecessary details,

is that the present Appellant was the owner of the Bus bearing

registration No.ORS 9225 and the said bus was duly insured with the

Oriental Insurance Company Ltd. (Respondent No.6). One Daitari

Panigrahi, who was working as a Teacher in the Modipara M.E.School

under Sambalpur Municipality and was earning a monthly income of

Rs.1700/-, is the husband of Respondent No.1 and father of Respondent

Nos. 2 to 5. On 3rd April, 1986 at about 4 P.M., the above named Daitary

Panigrahi was going by his bicycle and he was on the left side of the

main road, Sambalpur leading from Modipara Chhak to Hospital road.

When he took a turn to go to Modipara side, the Bus bearing

Registration No.ORS 9225 belonging to the Appellant, being driven in a

rash and negligent manner, knocked down the deceased and as a result

of which Daitary died on the spot.

3.After the death of late Daitary, his widow-Respondent No.1 and

children, Respondent Nos. 2 to5 filed a Claim Case in the Court of the

learned 2nd Motor Accident Claims Tribunal, Northern Division,

Sambalpur bearing Claim Case No.146 of 1986 claiming a

compensation amount of Rs.1,50,000/- from the opposite parties.

4.The Appellant and the Respondent No.6, Opposite Parties in the claim

petition, filed their separate written statements denying the allegations

made by the claimants.

5.On the basis of the pleadings of the parties, the learned M.A.C.T.(ND),

Sambalpur framed three issues to adjudicate the claim, which are given

hereunder:

i)Whether the accident took place due to rash and negligent driving of the Bus driver bearing ORS 9225 resulting in the death of Daitari Panigrahi on 03.04.1986 ?

ii) Whether the applicants are entitled to any compensation? If so, from whom and to what extent?

iii) To what relief, the parties are entitled?

6.To establish their case, claimant-applicants examined four witnesses,

whereas the Opposite Parties did not adduce any evidence, be it oral or

documentary.

7.The learned 2nd M.A.C. Tribunal, Sambalpur relying upon the ocular

evidence of A.W.No.2 arrived at a finding that there is no escape from

the conclusion that the accident resulting in the death of the deceased

was due to the rash and negligent driving of the bus in question. Hence

the Issue No.1 was answered affirmatively in favour of the claimant-

applicants. So far as the Issues Nos. 2 and 3 are concerned, those two

issues were taken up together and after discussing the evidence, learned

2nd M.A.C. Tribunal, Sambalpur passed the award dtd.12.01.1989

holding that the claimant-applicants are entitled to get a total

compensation of Rs.1,49,000/-. In reply to the question as to who shall

be liable to pay the compensation amount, learned 2nd M.A.C. Tribunal,

Sambalpur presumed that the liability of the insurer, Opposite Party

No.2 being unlimited, the Opposite Party No.2 is liable to indemnify the

insured and to pay the entire compensation amount to the claimant-

applicants. Accordingly directed Opposite Party No.2 to pay the entire

compensation amount of Rs.1,49,000/- within a period of two months

from the date of his judgment to the claimant-applicants.

8.The Respondent No.6, insurer preferred an appeal bearing

M.A.No.386 of 1989 before a learned Single Judge Bench of this Court

challenging the award dtd.12.01.1989 passed in Misc. case No.146 of

1986. After hearing the parties, this Court vide order dated 3rd May,

1994 disposed of the appeal holding that in view of Section 95(2)(b)(i)

of the M.V.Act, 1939, 2nd M.A.C. Tribunal, Sambalpur could not have

saddled the entire liability of Rs.1,49,000/- on the insurer alone. Further,

the award of the learned 2nd M.A.C. Tribunal, Sambalpur was modified

to the extent that the Respondent No.6-Insurance Company's liability is

limited to the extent of Rs.50,000/- only and the balance amount of

Rs.99,000/- would be paid by the present Appellant and further modified

the rate of interest from 12% as granted by the learned 2nd M.A.C.

Tribunal, Sambalpur to 6% per annum from the date of application till

date of payment is made.

9.As stated earlier, neither the insurer nor the insured filed any evidence

before the learned 2nd M.A.C. Tribunal, Sambalpur. Even a copy of the

insurance policy/premium receipt was not filed by either of them in the

learned Tribunal below. However, during pendency of the M.A.No.386

of 1989 before this Court, the Appellant-Insurance Company had filed a

Misc.Case No.89 of 1994 to adduce additional evidence in the appeal.

Such additional evidence includes a copy of the insurance policy. It is

relevant to mention here that, despite having opportunity, no objection,

whatsoever, was raised by anyone of the Parties to the said Misc. Case

seeking introduction of additional evidence in M.A.No.386 of 1989. The

learned Single Judge, however, observed that such additional evidence

shall be considered at the time of final hearing of M.A.No.386 of 1989

by order dated 15th July, 1997.

10.Challenging order dated 3rd May, 1994 passed in M.A.No.386 of

1989 passed by the learned Single judge, the present Appellant, the Bus

owner, has filed the present A.H.O. questioning the legality and validity

of order dated 3rd May, 1994.

11.Heard Mr.C.A.Rao, learned Senior Advocate for the Appellant and

Mr.G.P.Dutta, Advocate for the Respondent No.6 and perused the

records placed before us.

12.Mr.C.A. Rao, Senior Advocate appearing on behalf of the Appellant

(insured) made a valiant attempt to assail order dated 3rd May, 1994

passed by the learned Single Judge in M.A.No.386 of 1989 on the

ground that the insurance policy taken by the insured covers unlimited

liability arising on account of a claim by a 3rd party and that the

Appellant is not liable to pay any amount as directed by the learned

Single Judge of this court in the M.A.. It is further stated by him that the

Respondent No.6 -insurer has accepted a sum of Rs.240/- under "T.P.

Policy" and not "Act only Policy" and that the same covers the public

risk. Mr.Rao, learned Senior Advocate, further submitted that the T.P.

Policy covers the liability of 3rd party for unlimited amount for which an

extra premium of Rs.40/- has been paid to the insurer.

13. The Appellant insured has also filed a petition bearing Misc. case

No.88 of 1994 in the present AHO for additional evidence. Since no

objection was raised by any party, the same is allowed and taken on

record. The present Appellant has filed the schedule of rates of the

Insurance Company involved in the present case. The document under

the heading "Benefits Under Motor Insurance" provides three categories

of insurance policies. Under the second category i.e. Liability to the

Public Risk (Third Party Insurance), the following note is given;

"Indemnity against legal liability for claims by the public in respect of accident, personal injury or damage to property caused by the insured vehicle and W.C. liability to paid driver, cleaner or attendant whilst engaged on the vehicle as per limitations mentioned in the policy."

The insured Appellant had taken a liability to public risk policy by

paying extra premium of Rs.240/-.and this fact is evident from the copy

of the insurance policy filed before this court. Therefore, under the

public risk policy, the liability of the insurer is subject to the conditions/

limitations in the policy. When the Appellant has not paid any extra

premium for unlimited third party liability as the said column in the

premium receipt had been left blank, the liability of the insurer is subject

to the statutory limits prescribed under the Motor Vehicle Act, 1939.

14.In course of his argument, learned counsel appearing for the insured

placed a strong reliance on a judgment of this Court in National

Insurance Co. Ltd-vrs-Krushna Chandra Das and others, reported in

1989(II) OLR 120. Relying on Paragraph-5 of the said judgment, it was

submitted by him that the claimants are entitled to get the entire

compensation amount as directed by the learned 2nd M.A.C. Tribunal,

Sambalpur from the insurer without being affected by the limits

provided under section 95(2)(b)(i) of the M.V.Act, 1939.

15.On a careful reading of the judgment relied on by the learned counsel

for the Appellant reported in 1989(2) OLR 120, it is seen that the

deceased in the said case was a 3rd party pedestrian who died

unfortunately in an accident caused by a bus. Learned Single Judge, who

was adjudicating the said matter referred to Section 95(2)(b)(i) of

M.V.Act, 1939 and has arrived at a conclusion that a Pedestrian is not

such a person in respect of whom liability has been limited under section

95(2)(b)(i) of the Act and therefore, the learned Single Judge was

inclined to hold that the Claimants in respect of an accident caused by a

vehicle in which passengers carried are entitled to get compensation

from the insurer without being affected by the limits provided in Section

95(2)(b)(i) of the M.V.Act, 1939.

16.Mr.G.P.Dutta, learned counsel appearing for the insurer Respondent

No.6, defended the order passed by the learned Single Judge in

M.A.No.386 of 1989. Mr. Dutta furthersubmitted that the insurance

policy under which the claim is made does not cover unlimited liability

towards 3rd party. Moreover, the attention of the Court was drawn to a

copy of the Policy to support his contention that the liability towards 3rd

party is not unlimited in this case as the extra premium that was required

to be paid by the insured for such coverage has not been paid by the

insured in the present case. In fact, a close scrutiny of the insurance

policy which has been filed by the insurer before the learned Single

Judge along with a Misc.Case reveals that a total sum of Rs.1008/- has

been paid by the insured as premium to the insurer. Further, the schedule

of premium doesn't reveal whether any amount has been paid under the

heading "Add for increased T.P.limits" and the said heading in the

premium receipthas been left blank. This clearly shows that no extra

amount was paid by the insured to the insurer for unlimited 3rd party

policy.

17.Mr.C.A. Rao, learned counsel for the Insured relied upon the

judgment of the Hon'ble Supreme Court in the matter of National

Insurance Co. Ltd., New Delhi, -vrs.- Jugal Kishoreand othersreported

in AIR 1988 SC 719 to advance his argument on the issue that in all

such cases where the Insurance Company concerned wishes to take a

defence, in a claim petition, that its liability is not in excess of statutory

liability, it has to file a copy of the insurance policy along with its

evidence. He further submitted that the Insurance Company having not

filed the copy of the insurance policy before the learned M.A.C.

Tribunal, Sambalpur, the insurer is estopped to take the defence as stated

hereinabove. It is true that the copy of the insurance policy had not been

filed before the learned Tribunal by the Insurance Company at the first

instance. However, in the appeal before the learned Single Judge, the

Insurance Company sought to include in the evidence a copy of the

insurance policy by filing a petition for acceptance of additional

evidence. Although the insured was a party before the learned Single

Judge, no objection was filed to such an application. Moreover, the

learned Single Judge had passed an order indicating that the evidence

shall be considered at the time of final hearing of the appeal. Therefore,

once the learned Single Judge has accepted the evidence and passed

order indicating that the same will be considered at the time of final

hearing that too without any objection by the insured, it is no more open

to the insurer to take a stand that the insurer is estopped to take a plea

that the liability is limited under section 95(2)(b)(i) of the M.V.Act.

Moreover, it is the insured who has taken a stand in the present appeal

that the liability of the insurer is beyond the statutory limit of

Rs.50,000/- and therefore, the insured was under the legal obligation to

file a copy of the policy, both as a custodian of the insurance policy as

well to support his assertion that the liability of the insurer is beyond

Rs.50,000/- as provided under section 95(2)(b)(i) of the M.V.Act, 1939,

to support his contentions in this regard.

18.Learned counsel appearing for the Insurer while supporting the

impugned order has relied upon two judgments of the Hon'ble Supreme

Court. First, i.e. AIR 1988 S.C. 719 (Jugal Kishore's Case) to establish

that the liability of the Insurance Company as against 3rd party claim has

been restricted within the statutory limit as provided under Section

95(2)(b)(i) of the MV.Act, 1939. He has also placed his reliance upon a

judgment of the constitution bench of the Hon'ble Supreme Court of

India in the matter of New India Assurance Co.Ltd. -vrs.-C.M.Jaya and

others, reported in AIR. 2002 S.C. 651. In C.M.Jaya's case (supra), a

constitution Bench of the Hon'ble Supreme Court was considering the

question of Law i.e. "the question involved in this appeal is whether in a

case of Insurance policy not taking any higher liability by accepting a

higher premium, in case of payment of compensation to a 3rd party, the

insured would be liable to the extent limited under Section 95(2) or the

insured will be liable to the entire amount and he may ultimately recover

from the insurer". After analyzing several judgments by the Hon'ble

Supreme Court including Jugal Kishore's case (supra), in Paragraph-8

of the said judgment has arrived at the following conclusion;

"8. 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."

19.In view of the legal position discussed hereinabove, the law laid

down by a Single Judge Bench of this Court in 1993 (II) OLR page 11

is no more a good law as the same has been impliedly overruled by a

constitution Bench of the Hon'ble Supreme Court in AIR 2002 SC 651.

In view of the final legal position and the materials available on record,

the submissions made by the learned counsel for the Appellant that the

Respondent No.6 (insurer) had in the present case undertaken an

unlimited liability policy towards 3rd party claims does not have any

substance. The liability under the policy in the instant case, was the

same as the statutory liability contemplated by Section 95(2)(b)(i) of the

M.V.Act, 1939 as it stood at the relevant point of time. Therefore, the

learned Single Judge has not committed any illegality under the