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Rajasthan High Court · body

1996 DIGILAW 11 (RAJ)

United India Insurance Co. Ltd. v. Bhiki

1996-01-04

B.R.ARORA

body1996
Judgment B.R. Arora, J.-These two appeals arise out of the award dated 25.1988 passed by the Judge, Motor Accidents Claims Tribunal, Sri Ganganagar, by which the learned Judge of the Tribunal dismissed the Claim Petition No. 240 of 1982 (20/ 81) (Raniya vs. Gajan Singh) but allowed the Claim Petition No. 241 of 1982 (23/ 81) filed by Soni and Claim Petition No. 242 of 1982 (24/81) filed by Bhiki and awarded a sum of Rs. 5 9,000/-in each of the two claim petitions. As both these appeals arise out of the common award and relate to the same accident, they are, therefore, being disposed of by this common Judgment . 2. Deceased Magga, Panna and Jalal along with Bhaga, Binja and the others boarded a private bus No. RRK 6828 at Suratgarh on 7.2.1981 at about 11.00 PM for performing their journey to Bikaner and Banner. These seven passengers paid Rs. 16/-each to the conductor on the bus for fare from Suratgarh to Bikaner. The bus, at that time, was owned by Dharam-veer and was being driven by its driver Gajan Singh. The bus was being driven rashly and negligently and it overturned near Mokalsar, on account of which several persons received injuries. Magga, Panna and Jalal, who were also travelling in the bus, died at the spot. The dependants of these deceased filed three claim petitions before the Motor Accidents Claims Tribunal, Bikaner. Raniya, being the great grandson of Magga, filed Claim Petition No. 240 of 1982 (22/8 1) for the award of Rs. 30,000/-; Soni (widow of Panna) and others filed Claim Petition No. 241 of 1982 (23/81) for an award of Rs. 1,99,000 while Bhiki (widow of Jalal) along with others filed Claim Petition No. 242 of 1982 (41/81) for the compensation of Rs. 1,62,880/-. After the establishment of the Motor Accidents Claims Tribunal at Sri Ganganagar, these three claim petitions were transferred here from Bikaner. The claim petition, filed by the claimants, were opposed by the owner and the driver of the bus as well as the insurance company. All the three claim petitions were consolidated as they were arising out of one and the same accident and thereafter common evidence was recorded. The claimants, in support of their claim, produced Raniya, PW 1; Soni, PW 2; Bhiki, PW 3; Tagga, PW 4; Ram Das, PW 5; and Binjia, PW 6. All the three claim petitions were consolidated as they were arising out of one and the same accident and thereafter common evidence was recorded. The claimants, in support of their claim, produced Raniya, PW 1; Soni, PW 2; Bhiki, PW 3; Tagga, PW 4; Ram Das, PW 5; and Binjia, PW 6. The non-claimants, in support of their case, examined Dharamveer, NAW 1 and Hari Singh, NAW 2. The learned Judge of the Tribunal, after appreciation of the evidence produced on record, dismissed the Claim Petition No. 240 of 1982 (22/8 1) filed by claimant Raniya on the ground of non-joinder of the necessary parties because claimant Raniya was the great grandson of deceased Magga and Magga’s two daughters were also alive and even his real sister was alive. As all the legal representatives of deceased Magga were not joined as the parties to the claim petition, the same was dismissed. The learned Judge of the Tribunal, however, allowed the Claim Petition No. 241 of 1982 filed by Soni and others and Claim Petition No. 242 of 1982 filed by Bhiki and others and awarded a sum of Rs. 59,00 in each of these two claim petitions along with interest at the rate of 6 per cent per annum from the date of filing the claim petitions to the date of the award and 18 per cent from the date of the award till realisation. It is against this award that the insurance company has filed these two appeals. 3. The only contention raised by the learned Counsel for the insurance company is that liability of the insurance company, as per Section 95 (2) (b) of the Motor Vehicles Act, 1939, before its amendment, was limited to the extent of only Rs. 5,000 in each case and the learned Judge of the Tribunal was, therefore, not justified in holding the appellant liable to indemnify the whole damages. The contention of the learned Counsel for the respondent, i.e., the owner of the vehicle, on the other hand, is that the bus was comprehensively insured with the insurer and, therefore, the liability of the insurance company was unlimited and the learned Judge of the Tribunal, therefore, rightly held the insurance company liable to indemnify the whole of the claim. The contention of the learned Counsel for the respondent, i.e., the owner of the vehicle, on the other hand, is that the bus was comprehensively insured with the insurer and, therefore, the liability of the insurance company was unlimited and the learned Judge of the Tribunal, therefore, rightly held the insurance company liable to indemnify the whole of the claim. It has also been contended by the learned Counsel for the respondents that the insurance company has not placed on record the copy of the insurance policy and, therefore, the statement made by the owner of the vehicle should be accepted. 4. I have considered the submissions made by the learned Counsel for the parties. 5. Though nocopy of the insurance policy was filed by the insurance company or got it proved but the respondent, Dharamveer, who appeared as DW 1 has placed on record Exh. Al, the original of the insurance policy issued in respect of this vehicle. The policy indicates the limits of the liability and the amount of premium paid. In the column ‘insured estimate of value including accessories’, an amount of Rs. 1,35,000/-has been shown and below it, it has been stated as comprehensive. The premium, on the other hand, has been shown as under: Basic Rs. 426/-IFV Rs. 675/-RSD Rs. 337/-50 passengers at the rate of Rs. 6/-per passenger Rs. 300/-One driver and conductor Rs. 16/-Rs. 1,754/-Less 15 per cent NCB Rs. 263/-Rs. 1,491/-Less 10 per cent SD Rs. 149/- Rs. 1,342/-The comprehensive policy issued in the present case, on the basis of the estimated value of Rs. 1,35,000/-of the bus cannot automatically cover the liability with regard to the third party for the amount higher than the statutory limit. The bus was insured for fifty passengers and the insurance company had charged an extra premium of Rs. 61- per passenger. The charging of the amount of Rs. 61- per passenger cannot be said to be a premium payable to cover unlimited liability as it has not been mentioned so in the policy. 6. The question: whether the comprehensive insurance of the vehicle and the payment of higher premium on the score will increase the liability of the insurance company with regard to the third party risk, came up for consideration before the Supreme Court in the case of National Insurance Co. 6. The question: whether the comprehensive insurance of the vehicle and the payment of higher premium on the score will increase the liability of the insurance company with regard to the third party risk, came up for consideration before the Supreme Court in the case of National Insurance Co. Ltd. vs. Jugal Kishore 1988 ACJ 270 (SC) and the Supreme Court held that:-Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under Sub-section (2) of Section 95 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 Likewise, if risk of any other nature, for instance, with regard to the driver or passengers etc. in excess of statutory liability, if any, is sought to be covered it has to be clearly specified in the policy and separate premium is paid therefor. This is the requirement of the Tariff Regulations framed for the purpose. 7. The same controversy regarding the limits of the liability of the insurance company under Section 95 (2) (b) (ii) of the Act again came up for consideration before the Supreme Court in New India Assurance Co. Ltd. vs. Shanti Bai 1995 ACJ 470 (SC) and the Supreme Court, relying on the earlier decision in National Insurance Co. Ltd. vs. Jugal Kishore 1988 ACJ 270 (SC), held that:-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 Rs. 15,000/-per passenger under Section 95 (2) (b) (ii) of the Motor Vehicles Act, 1939. In the present case, there is no special contract 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. 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. vs. Jugal Kishore 1988 ACJ 270 (SC), comprehensive policy only entitles the owner to claim reimbursement of the entire amount of the loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with regard to the 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 vs. P.A. Ahmedkutty 1987 ACJ 872 (SC). The appellant company is, therefore, entitled to succeed to the extent that it has been directed to pay to respondent Nos. 1 to 3 any amount in excess of Rs. 15,000. 8. In view of the Judgment of the Supreme Court referred above, if can safely be said that the liability of the insurance company under Section 95 (2) (b) (ii) of the Act is only to the extent of Rs. 5,000/-per passenger as per the unamended provisions as there was no specific contract between the appellant company and Dharamveer, Respondent No. 3, to cover unlimited liability with respect to an accident to the passengers. In the absence of any express contract the policy can cover only the statutory liability and not the unlimited liability. The learned Judge of the Tribunal was, therefore, not right in holding the appellant liable to indemnify the whole of the claim. The insurance company is liable to indemnify the claim up to its statutory liability, i.e., Rs. 5,000/-per passenger. Merely because the policy issued by insurance company was a comprehensive policy it will not help the respondents in any manner and the liability of the insurance company will not become unlimited and the award against the insurance company cannot be made in excess of the statutory liability. It can only entitle the owner of the vehicle to claim reimbursement of the damages suffered by the vehicle as a whole and cannot extend the limit of the liability with respect to the third party risk. 9. It can only entitle the owner of the vehicle to claim reimbursement of the damages suffered by the vehicle as a whole and cannot extend the limit of the liability with respect to the third party risk. 9. In the result, the appeals filed by the appellant are partly allowed. The award passed by the learned Judge of the Tribunal, awarding the compensation of Rs. 59,000/-along with the interest at the aforesaid rates in each of the two claim petitions, is maintained but, however, the liability of the insurance company to indemnify the damages will be limited only to the statutory limit of Rs. 5,000/-per passenger.