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1997 DIGILAW 888 (PAT)

Kashinath Poddar v. Archana Sahay

1997-12-11

NARAYAN ROY

body1997
JUDGMENT Narayan Roy, J : 1. have heard counsel for the parties. 2. This miscellaneous appeal is directed against the judgment dated 17.6.1987, passed by the 2nd Additional District Judge-Cum-Motor Vehicle Accident Claims Tribunal, Dhanbad, in Title (Compensation) Suit no. 69 of 1984, by which the learned Tribunal has directed for payment of compensation to the claimant to the tune of Rs. 2,88,00/- out of which Rs. 1,50,000/- was payable by the Insurance Company (respondent no. 2) and the rest by the owner of the vehicle i.e., the appellant. 3. Mr. Kameshwar Prasad learned counsel appearing on behalf of the appellant, mainly contended that the appellant, who is the owner of the vehicle in question, is not liable to pay compensation as awarded by the learned Tribunal, because the vehicle in question was insured by the Insurance Company (respondent no. 2) and it was a comprehensive insurance and, therefore, the Insurance Company was covering the entire risk and as such the Insurance Company was to Indemnify the insured learned counsel also submitted that the learned Tribunal even in absence of the appellant or his driver, who was driving the vehicle in question at the relevant time could not have passed the impugned Judgment against them directing them to pay compensation to the claimant. 4. Mr. Kameshwar Prasad, learned counsel for the appellant in support of his contention has filed all application under Order 41, Rule 27, read with section 151 of the Code of Civil procedure annexing therewith a copy of the insurance Certificate, by which the vehicle of the appellant, which bad met with an accident was insured. Learned counsel, in support of his submission, has also placed reliance upon the two decisions of this Court in the case of New India Insurance Company Ltd. vrs. Smt. Chinta Devi and, ors, reported in 1992(1) PLJR 212 and in the case of Dilip Kumar Saba vrs Smt. Runnu Sarkar and another reported in 1914(l) PLJR 607. 5. Learned counsel, in support of his submission, has also placed reliance upon the two decisions of this Court in the case of New India Insurance Company Ltd. vrs. Smt. Chinta Devi and, ors, reported in 1992(1) PLJR 212 and in the case of Dilip Kumar Saba vrs Smt. Runnu Sarkar and another reported in 1914(l) PLJR 607. 5. Learned counsel appearing on behalf of the Insurance Company (respondent no.2) on the contrary submitted that even though the vehicle was insured and it was a comprehensive policy there was no special contract between the respondent Insurance Company and the owner of the vehicle to cover unlimited liability, as there was no contract and no premium was aid by the owner of the vehicle towards third party risk and, therefore, the Insurance Company was only liable to pay the amount of compensation to the extent of Rs. 1,50,000/- under section 95 (2) (b) (ii) of the Motor Vehicles Act, as per the Tarrif of the Insurance Company. 6. The question for determination now is as to whether the owner of the vehicle, which had met with an accident killing one person is liable to pay compensation to the claimant beyond the extent of Rs. 1,50,000/-, payable by the Insurance Company even when there was a comprehensive Insurance Policy covering the risk of the vehicle in question ? 7. In the case of New India Insurance co. Ltd. (Supra) this court held that for failure to file copy of the policy of insurance it would invite drawing of adverse inference and inference may be drawn that the vehicle involved in the accident in question was insured and the policy covered the entire liability. Here in the instant case, the appellant had tried to wake out a case that the copy of the policy of insurance was not filed before the Tribunal and, therefore, his case is squirely covered by the decision aforesaid. It would be pertinent to mention here that in this appeal itself the appellant has produced the copy of the Insurance Certificate, as contained in Annexure-1 to the application under Order 41, Rule 27, read with section 151, of the Code of Civil Procedure. It would be pertinent to mention here that in this appeal itself the appellant has produced the copy of the Insurance Certificate, as contained in Annexure-1 to the application under Order 41, Rule 27, read with section 151, of the Code of Civil Procedure. The appeal is also in continuation of the suit and since Annexure-1 has been produced in this appeal, it would be futile to submit that the insurance policy was not filed and therefore, the adverse interference would be drawn against the respondent Insurance Company. In this view of the matter, the decision aforesaid, in my opinion, has no application in the fats and circumstances of the case. 8. So far as the case of Dilip Kumar Saha (Supra) is Concerned, this court has held that since the Insurance Company under its policy had undertaken to indemnify the insured of his total liability under the Motor Vehicles Act, it was incumbent upon the Insurance Company to pay the entire amount of compensation as claimed by the claimant and as awarded by the learned Tribunal. 9. I have already noticed above that there was no special contract between the Insurance Company and the owner of the vehicle to cover unlimited liability in respect of an accident causing the death of the third party. Therefore, it cannot be said that the Insurance Company under its police has undertaken to indemnify the insured of his total liability. In this view of the matter, in my opinion, the ratio laid down in the case of Dilip Kumar Saha (Supra) is of no avail to the appellant. 10. It is not in dispute that the claimant was the widow of the deceased, who died in the accident as he was cashed by the vehicle in question, bearing registration no. BHU 9655 and undisputedly the claimant has also proved her case that her husband was killed by the vehicle in question, which was being driven rashly and negligently. It is also not disputed that the age of the deceased at the relevant time was 38 years and he was an earning member. The learned Tribunal after considering the facts and circumstances of the case and also seeing the evidence on record passed the impugned award directing the Insurance Company and also the owner of the vehicle to pay compensation to the extent of their liabilities as indicated above. 11. The learned Tribunal after considering the facts and circumstances of the case and also seeing the evidence on record passed the impugned award directing the Insurance Company and also the owner of the vehicle to pay compensation to the extent of their liabilities as indicated above. 11. From the facts enumerated above, it is clear that the vehicle in question, of which the appellant the appellant is the owner, was insured under the Insurance Company (respondent no. 2) and in absence of any special contract in between the parties to cover unlimited liability in respect of an accident where a third party was killed, the owner of the vehicle car not be exonerated from his liabilities, even when the Insurance Policy was a comprehensive policy covering all the risks of the vehicle in question. In the case of New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, reported in AIR 1995 Supreme Court 1113, the apex court held as under :- "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 fifteen thousand rupees 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. Ltd. Vs Jugal Kishore ( AIR 1988 SC 719 ) (supra), comprehensive policy only entitles the owner to claim reimbursement of the entire amount of loss or 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. 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) 3 SCR 1149 : ( AIR 1987 SC 2158 ). 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) 3 SCR 1149 : ( AIR 1987 SC 2158 ). The appellant-company is, therefore, entitled to succeed to the extent that it has been directed to pay to respondents 1 to 3 any amount in excess of Rs.15,000/-.” 12. In view of the ratio laid down by the apex court as noticed above and for the reasons discussed above, it must be held that the appellant is liable to pay the amount of compensation, excluding Rs.1,50,000/- payable by the Insurance Company (respondent no. 2). 13. In the result, therefore, I find no merit in this appeal. It is thus dismissed, but without cost. Appeal dismissed.