National Insurance Co. Ltd. v. Basanti Bagchi — 1997 DIGILAW 355 (CAL)

JUDGMENT Satyabrata Sinha, J. This appeal is directed against a judgement and award dated 11.1.88 passed by B.U. Mukherjee, Judge, Motor Accident Claims Tribunal in Misc. (M.A.C.) Case No. 238 of 1981, whereby and whereunder the said Tribunal awarded a sum of Rs. 67,200/- by way of compensation for death of one Badal Bagchi in favour of his mother-the respondent no. 1 by the appellant. The fact of the matter is not in dispute. 2. The deceased Badal Bagchi was travelling in Mini Bus No. WGB 3310 on 24.8.81. It met with an accident, as a result whereof the deceased suffered severe injuries and ultimately died in the hospital. The claim petition was filed by the claimant-respondent No. 1 in terms of s. 110A of the Motor Vehicles Act, 1939. The owner of the said Bus did not appear. The aforementioned claim case was contested by National Insurance Company. The Accident Claims Tribunal in view of the pleadings of the parties framed the following issues:- 1. Is the application maintainable? 2. Was the death caused by the alleged accident due to rash and negligent driving of the offending vehicle? 3. If the petitioner is entitled to get any compensation? If so, for what amount? The learned Tribunal upon considering all evidences on record, inter alia, held that the claimant is entitled to a compensation of Rs. 67,200/-. The learned Tribunal directed that out of the aforementioned amount, Rs. 50,000/- shall be converted in N.S.C. VIth Issue so as to protect the petitioner as she was a lady and the rest amount including interest shall be paid to her in cash or by cheque as per procedure. 3. Mr. Das, the learned counsel appearing on behalf of the appellant, has raised a short question in support of this appeal. The learned counsel has drawn our attention to paragraph 13 of the written statement, wherein the appellant has stated that the liability, if any, of the opposite party was limited to the extent as provided under s. 95(2)(b)(ii)(4) of the Motor Vehicles Act. The learned counsel has drawn our attention to paragraph 13 of the written statement, wherein the appellant has stated that the liability, if any, of the opposite party was limited to the extent as provided under s. 95(2)(b)(ii)(4) of the Motor Vehicles Act. When questioned, the learned counsel very fairly submits that before the learned Tribunal, no argument appears to have been advanced on the said issue; but according to the learned counsel as the Insurance Policy itself was taken on records and marked as an exhibit A, this court can look into the said exhibit and find out the liability of the insurance company. The learned Counsel in support of his aforementioned contention has relied upon 1987 A.C.J. 242, 1987(1) CHN 17 , 1995(2) SCC 539 and 1997 ACJ 1. The learned counsel submits that in terms of r. 234 of the Bengal Motor Vehicles Rules issue as regards liability of the insurance company was required to be framed. 4. The learned counsel for the respondent, on the other hand, submits that the question as to whether there had been a special contract in terms whereof the insurance company would have been liable for payment of entire sum, had neither been pleaded nor any evidence to that effect had been adduced. According to the learned counsel, it was for the insurance company in absence of the owner to prove that there did not exist any special contract. 5. In view of the decisions cited by Mr. Das, there cannot be any doubt that the statutory liability of insurance company in respect of passenger of bus unless there exists any special contract would be limited to the statutory provision referred to hereinbefore. 6. However, in the instant case, as indicated hereinbefore, no issue was framed by the learned Tribunal as regard alleged limited liability of the appellant. Although in terms of the rules framed by the State of West Bengal, issues were required to be framed, Keeping in view the provisions of Or. 14 of the Code of Civil Procedure; we are of the opinion that it was for the opposite party-appellant to press the said issue. If no issue was framed, it was the duty of the appellant to ask the learned Tribunal to frame an appropriate issue, so that if necessary the claimant-respondent could have adduced evidence to show that there exists a special contract. If no issue was framed, it was the duty of the appellant to ask the learned Tribunal to frame an appropriate issue, so that if necessary the claimant-respondent could have adduced evidence to show that there exists a special contract. The parties to the insurance can always vary the terms of the policy and the liability of the insurance company can always be extended by payment of additional premium. The said question of fact could only be adjudicated if the appellant had pressed the said matter before the Tribunal. In respect of proceedings under Chapter VIII of the Motor Vehicles Act, 1939 the Code of Civil Procedure applies. At the time of framing of issues, the parties are required to address the court and if necessary oral evidence may also be adduced. It may be true as was submitted by Mr. Das that in terms of the aforementioned Rules it is the duty of the Tribunal to frame issue; but there cannot be any doubt whatsoever that the said provision has to be read keeping in view the provisions of the Code of Civil Procedure. In any event, a mistake on the part of the court cannot stand in the way of the claimant-respondent to get the just relief particularly after a lapse of about 16 years, and as the appellant had also a duty in this regard, it cannot also take advantage of its own wrong. 7. Admittedly no argument was advanced before the learned Tribunal below. As indicated hereinbefore, even no question was put to the witnesses as regard alleged limited liability of the appellant. The appellant did not examine any witness. Before the learned Tribunal Judge it took only two points as would appear from the trend of the cross-examination which were not available to it in view of s. 96(2) of the Motor Vehicles Act. 8. Sub-section (4) of s. 96 of the Motor Vehicles Act cannot be held to mean that even the insurers can ignore its statutory liability. 9. Section 96 of the Act deals with the obligation of the insurer for which a vehicle must be insured and other indicated matters. The liability of the insurer is to indemnify the insured. Prior to 1939 Act, victim of an accident had no independent claim against the insurer. Such was the position in England also prior to coming into force of the Road Traffic Act. The liability of the insurer is to indemnify the insured. Prior to 1939 Act, victim of an accident had no independent claim against the insurer. Such was the position in England also prior to coming into force of the Road Traffic Act. Section 96 of the Act is a substantive provision which deals the liability of the insurer to pay to the claimant directly. 10. In M. Vengamma and Ors. vs. K. Duravasulu and Ors. reported in AIR 1978 AP 90 , Jeevan Reddy, J (as His Lordship then was) held that under s. 96(4) the insurer would be entitled to recover from the insured the additional amount paid by it in excess of the amount covered by the policy. 11. The decision of this court relied upon by Mr. Das in National Insurance Company Ltd. vs. Sm. Tarak Bala Das & Anr. reported in 1987(1) CHN 17 is not applicable to the fact of the present case. In that case, the only question which arose was the statutory liability of the insurer. No question was raised therein as to whether even in a case where the insurance company does not press its claim as regards its quantum of liability, such a point should be allowed to be raised for the first time before the appellate court. We, however, do not find that the right to recover in terms of subs. (4) is confined to the amount with reference to the sum assured as such terminology, has not been used therein. In fact, sub-s. (4) of s. 96 postulates a situation where the insurance company has paid any sum beyond its statutory or contractual liability. 12. In New India Assurance Co. vs. Shantidebi reported in 1995(2) SCC 539 the Supreme Court was concerned with a case where the High Court allowed additional evidence to be adduced subject to a condition that the entire amount shall have to be paid by the insurance company. Such a condition was found by the Apex Court as unreasonable. 13. In New Asiatic Insurance Co. Ltd. vs. Pessumal Dhanamal Aswani and Ors. reported in AIR 1964 SC 1736 , the Apex Court held:- "Thus, the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties in view of the provisions of the Act. 13. In New Asiatic Insurance Co. Ltd. vs. Pessumal Dhanamal Aswani and Ors. reported in AIR 1964 SC 1736 , the Apex Court held:- "Thus, the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties in view of the provisions of the Act. We are of the opinion that once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy. Considering this aspect of the terms of the policy, it is reasonable to conclude that proviso (a) of para 3 of s. II is a mere condition affecting the rights of the insured who effected the policy and the persons to whom the cover of the policy was extended by the company, and does not come in the way of third parties claim against the company on account of its claim against a person specified in para 3 as one to whom cover of the policy was extended". However, the said decision was distinguished in British Indian General Insurance Co. Ltd. Bombay vs. Smt. Maya Banerjee and Ors. reported in AIR 1986 SC 2110 wherein also despite a finding that the insurer's liability was only to the extent of Rs. 20,000/-, the apex court refused to interfere with the directions directing payment of the entire amount of Rs. 30,000/-. 14. The aforementioned decision, therefore, is also a pointer to show that in a given case the court may refuse to exercise its discretion. 15. Had the case been argued by the appellant before the Tribunal below it could have passed an award in the light of the statutory provisions and in that event, there would have been no necessity for the appellant at all to prefer an appeal and the award could be executed both against the appellant as also the owner straightway. At that point of time, there could have been a possibility of the claimant in recovering the awarded amount from the owner of the vehicle. Today she may not be in a position to do so. This Court, thus, acting as sentinal in the quia vive would refuse to exercise its discretion. 16. At that point of time, there could have been a possibility of the claimant in recovering the awarded amount from the owner of the vehicle. Today she may not be in a position to do so. This Court, thus, acting as sentinal in the quia vive would refuse to exercise its discretion. 16. Furthermore, this court is dealing with a case where a mother has lost her son who was the bread winner of the family. The learned Tribunal has found that the earning of the deceased was Rs. 350/- per month only and the amount of compensation has been calculated on that basis. Admittedly, the accident took place on 24.8.1981, the point raised in this appeal, if allowed, would mean that the respondent no. 1 would have to enforce the rest of her claim apart from a sum of Rs. 5,000/- against the owner of the Mini Bus in question. This court cannot, in such a situation, lose sight of the principles of 'distributive justice' and allow the appellant to take advantage of its own wrong. The appellant is also a State within the meaning of Art. 12 of the Constitution of India. It has a duty to comply with the directive principle as envisaged in Part-IV of the Constitution, which are fare runners of the U.N.O. Convention on Right to Development as inalienable human right. See L.I.C. of India vs. Consumer Education & Research Centre reported in 1995(5) SCC 482 which has been followed in Air India Statutory Corporation vs. United Labour Union reported in AIR 1997 SC 645 . 17. The appellant, as noticed hereinbefore, fought out the matter before the learned Accident Claims Tribunal on the grounds which were not available to it but did not make any submission or raise any question as regard as contention which was available to it. 18. This court is not only a court of law but also a court of justice. If at this stage the appeal is allowed, irretrievable injury would be caused to the first respondent who has not been able to receive a single farthing despite the fact that she lost her son in August 1981. The learned Accident Claims Tribunal has also merely awarded interest at the rate of 6 per cent per annum. If at this stage the appeal is allowed, irretrievable injury would be caused to the first respondent who has not been able to receive a single farthing despite the fact that she lost her son in August 1981. The learned Accident Claims Tribunal has also merely awarded interest at the rate of 6 per cent per annum. On the other hand, the appellant-company which has its resources may pursue its right as against the owner of the vehicle in terms of subs. (4) of s. 96 of the Motor Vehicle Act. In this situation we are of the opinion that the interest of justice demands that no interference is made in the appeal with liberty to the appellant to pursue its remedies in terms of subs. (4) of s. 96 of the Motor Vehicles Act. 19. In Smt. Surjit Kaur vs. Union of India & Ors. reported in 1997(2) CLJ 113 , it has been held:- "This application also cannot be thrown out on the ground of delay in view of the decision of the Supreme Court of India in Collector, Land Acquisition Anantnag & Anr. vs. Mst. Katiji & Ors. reported in AIR 1987 SC 1353 , wherein it was held:- When substantial Justice and technical considerations are pitted against each other, cause of substantial Justice deserves to be preferred for the either side cannot claim to have vested right in injustice, being done because of a non-deliberate delay. It must be grasped that judiciary is expected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so". 20. A Division Bench of this court in AIR 1997 Cal 242 has considered the effect of Ss. 95 and 96 of the M.V. Act. It is also well known that justice is higher than law, although justice has to be administered in accordance with law. 21. 20. A Division Bench of this court in AIR 1997 Cal 242 has considered the effect of Ss. 95 and 96 of the M.V. Act. It is also well known that justice is higher than law, although justice has to be administered in accordance with law. 21. In this view of the matter and keeping in view the fact that the claim petition was filed in the year 1981 and the amount awarded in favour of the claimant is not a heavy sum and further in view of the fact that the appellant itself is to be blamed for non-framing of a proper issue, it is one of those cases, where the appellant insurance company should be directed to take recourse to sub-s. (4) of s. 96 of the Motor Vehicles Act, 1939. 22. The appeal is disposed of with the aforementioned directions without any order as to costs. Bhaskar Bhattacharya, J.: I agree. Appeal dismissed.