ORIENTAL INSURANCE CO. LIMITED v. SMT. URMILA SAHU
1995-11-21
SUSANTA CHATTERJI
body1995
DigiLaw.ai
S. CHATTERJI, J. ( 1 ) THE present appeal at the instance of the appellant, Oriental Insurance Company Ltd. challenges the award passed by the Second Motor Accident Claims Tribunal, Berhampur on 4-6-1990 in M. A. C. No. 146/90 (92/89 ). ( 2 ) IT transpires from the impugned award that an application for compensation under Section 110-A of the Motor Vehicles Act was filed due to death of Saiba Sahu, who died in a motor accident. The deceased was a supplier of Semia packets on commission basis. On 2-1-89 at about 9. 30 a. m. while the deceased after finishing his work at Chatrapur was proceeding on the public road, near. O. S. E. B, Colony, Chatrapur a passenger bus bearing registration No. OSX 2975 came from Bhubaneswar side to go to Chatrapur Bus stand. Being driven in a rash and negligent manner, the bus ran over the victim causing his spot death. On account of this unfortunate death of the deceased, the petitioners preferred a claim of Rs. 1,00,000/- as compensation. ( 3 ) THE owner of the vehicle did not contest, The Insurance Company had resisted the claim by filing a written statement and by disowning its liability. ( 4 ) THE following issues were framed :- (i) Whether the vehicle bearing No. OSX 2975 (Bus) driven in a rash and negligent manner causing death of Saiba Sahu? (ii) Whether the petitioners are entitled to compensation? (iii) Whether the quantum of compensation is claimed by the petitioners is high? (iv) To what relief ? ( 5 ) CONSIDERING all the issues and assigning the reasons the learned Motor Accident Claims Tribunal ordered that the Insurance Company should pay a sum of Rs. 90,000/ - to the petitioner with interest at the rate of 6 per cent per annum from the date of application till realisation. There is a direction that out of the compensation amount, a sum of Rupees 70,000/- should be kept in a fixed deposit in a Nationalised Bank. ( 6 ) BEING aggrieved by the aforesaid award, the Insurance Company has filed the present appeal. The first point canvassed on behalf of the Insurance Company is that the liability of the Insurance Company as per the policy is up to Rs. 50,000/- and as such it is not liable to pay beyond this amount.
( 6 ) BEING aggrieved by the aforesaid award, the Insurance Company has filed the present appeal. The first point canvassed on behalf of the Insurance Company is that the liability of the Insurance Company as per the policy is up to Rs. 50,000/- and as such it is not liable to pay beyond this amount. The learned Advocate appearing for the appellant has argued that the Insurance Policy as per Ext. A shows that the liability of the appellant towards the third party is restricted to Rupees 50,000/- and no larger liability can be asked by a third party. It is further argued that neither the owner nor the claimants have taken any plea that wider coverage has been taken. It is contended that the learned tribunal while taking note of the same in paragraph 10 of the award relying upon the decision reported in 1990 ACJ 288 (National Insurance Co. Ltd. v. Krushna Chandra Das) has held that there should be compensation for Rs. 90,000/- whereas the aforesaid decision has already been overruled. Much emphasis has been laid upon the relevant policy where it is referred that the insured by a proposal and declaration in the schedule shall be the basis of the contract and is deemed to be incorporated herein. According to the learned lawyer for the appellant the schedule premium consists of two parts in comprehensive insurance i. e. , (A) own damage basis, (B) liability to public risks and the total premium has been paid for both own damage and public risk (A + B ). It is emphasised that public risk is the heading under schedule (B) and it has been further categorised under different heads such as liability to passenger, liability to driver, clearer and conductor and increased liability to the third party. Attention of the Court has been drawn to the fact that on limits of the amount of the company's liability under Section 11 (1) (ii) in respect of any one claim or series of claims arising out of one event Rs. 50,000/ -. Attention of the Court has been drawn to 1995 ACJ 470 as to the ratio that the mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed out by the Supreme Court in the case of National Insurance Co.
50,000/ -. Attention of the Court has been drawn to 1995 ACJ 470 as to the ratio that the mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed out by the Supreme Court in the case of National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC) comprehensive policy only entitles the owner to claim reimbursement of the entire amount of the loss of 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. Reference has been made to 1988 ACJ 270 (supra) also. With regard to the liability of insurance, comprehensive insurance of the vehicle and payment of higher premium on this score do not mean that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under Section 95 (2) of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. Another reference has also been made to a case reported in (1991) 72 CLT 495 (Udayanth Pani v. Basanti Dalai ). It is submitted that the view taken in (1991) 72 Ori LT 495 (supra) has been approved by the Division Bench of this Court in MAC No. 97/91 (Hanilal v. Divisional Manager ). A reference has also been made to (1992) 34 OJD 26 (Civil) wherein it is discussed that the moot question for determination is whether it is open to the tribunal to saddle the insurance company with unlimited liability solely on the ground that an incomplete policy has been filed by it. The observations and the findings in the said decision should be understood in the context of the facts of that case. It is strongly argued that the decision cannot be taken as authority laying down any such general principle and the insurance policy should be properly construed. ( 7 ) THE totality of the submission made on behalf of the appellant-insurance company is that in the present case the larger liability of Rs.
It is strongly argued that the decision cannot be taken as authority laying down any such general principle and the insurance policy should be properly construed. ( 7 ) THE totality of the submission made on behalf of the appellant-insurance company is that in the present case the larger liability of Rs. 90,000/- has been fixed thereas the Insurance Company cannot be saddled with the liability beyond Rs. 50,000/- as per its policy. ( 8 ) THE learned lawyer for the respondent has, however, supported the award passed by the tribunal. Attention of the Court has been drawn to the decision reported in (1991) 71 OLT 176 (Akhaya Kumar Sahoo v. Kumari Chhabirani Sethi ). Attention of the Court has also been drawn to the recent decision of the Supreme Court reported in 1994 (2) SCC 176 : ( AIR 1994 SC 1631 ) (General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Brs ). ( 9 ) UPON perusal of the pleadings of the parties, the material evidence on record and on consideration of the submissions made on behalf of the respective parties before this Court, it is found that the insurance policy as filed in this case indicates, inter alia, that the same is a comprehensive one and so far as third party pedestrian is concerned, it is unlimited and the premium has been paid. The points raised by the insurance company have no merit. There is specific mention of unlimited liability so far as third party is, concerned and the provisions of Section 95 (2) (6) (I) of the Motor Vehicles Act, 1939 is available to a pedestrian. There is observation that in all cases where the insurer takes a defence that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy to help the Court in doing justice in the case. Because of an incomplete copy of the policy being placed on record, it can be held that the liability of the insurance company was not limited to what has been provided under the statute. The Court can draw an adverse inference against the insurer for not filing the complete policy and held that in case a complete policy has bean filed the same should have shown that the insurer was liable beyond the statutory liability.
The Court can draw an adverse inference against the insurer for not filing the complete policy and held that in case a complete policy has bean filed the same should have shown that the insurer was liable beyond the statutory liability. In the present case the insurance policy indicates both the heads including unlimited liability so far as third party is concerned. On further scrutiny of the insurance policy, this Court is of the view that the Insurance Company cannot take exception about unlimited liability and the argument advanced on behalf of the Insurance Company is not appreciated. ( 10 ) REGARDING the quantum of compensation, this Court finds that the Supreme Court in 1994 (2) SCC 176 (supra), has observed that the determination of the quantum of compensation must answer what contemporary society would deem to be a fair sum such as would allow the wrong doer to hold up his head among his neighbours and say with their approval that he has done the fair thing. The amount awarded must not be niggardly since the "law valued life and limb in a free society in generous scales". All this means that the sum awarded must be fair and reasonable by accepted legal standard. In the instant case the learned Tribunal has discussed all the evidence in depth and assessed the compensation which, is found to be fair and reasonable. The impugned award is neither contrary to nor inconsistent with the relevant facts as per the evidences and the well settled principle of law. This Court is not inclined to interfere with the said award. For the foregoing reasons, the appeal fails and the same is dismissed. There will be no order as to costs. Appeal dismissed. .