M. Amiruthan v. M. Kannaki — 1999 DIGILAW 655 (MAD)

Judgment :- M. Amiruthan, the owner of the Tourist Taxi involved in the accident, is the appellant herein. 2. The Tribunal, in the claim petition filed by the respondents 1 to 4 for the death of the deceased due to the negligent driving of the driver of the Tourist Taxi owned by the appellant, holding that the driver of the taxi was negligent, directed the appellant to pay the compensation of Rs. 1,38,500/- and the Insurance Company, the 5th respondent herein, to pay Rs. 50, 000/- being the limited liability to the claimants. 3. This award is challenged in this appeal by the owner of the vehicle on the ground of negligence and of the liability to pay. 4. The necessary facts, which may be stated in a nutshell, are as follows:— On 1.6.88 at about 2.30 P.M., the deceased Mani @ Veerapandiyadurai drove the motor cycle bearing registration No. MSR 8016 from west to east keeping to his left. The tourist taxi, Ambassador Car bearing registration No. TDZ 5797, belonging to the appellant, was coming in the opposite direction from east to west. Suddenly, when the taxi came near the motor cycle, it went to the wrong side to the north and dashed against the motor cycle and thereby, the deceased was thrown out and the motor cycle was heavily damaged and ultimately, the deceased died. A criminal case was registered by the police against the taxi driver. 5. The widow, mother and children of the deceased filed a claim petition claiming compensation of Rs. 5,00,000/-. The owner of the vehicle contested the claim by examining the driver as R.W. 4 stating that the accident was not due to the negligence of the driver of the Taxi. The Insurance Company, with which the vehicle was insured, pleaded through R.Ws. 1 and 2 that they would be liable to pay only Rs. 50,000/-. Since the policy covers only limited liability. 6. The Tribunal, on analysing the evidence of P.W.I, the wife of the deceased and P.W. 2 Saleem, the eye-witness and Exs. A-1 to A7 marked on behalf of the claimants and the evidence of R.W. 3, the owner of the Taxi, R.Ws. 1 and 2, on behalf of the Insurance Company R.W. 4, driver of the taxi and Exs. 6. The Tribunal, on analysing the evidence of P.W.I, the wife of the deceased and P.W. 2 Saleem, the eye-witness and Exs. A-1 to A7 marked on behalf of the claimants and the evidence of R.W. 3, the owner of the Taxi, R.Ws. 1 and 2, on behalf of the Insurance Company R.W. 4, driver of the taxi and Exs. B-1 to B-9 marked on behalf of the owner of the taxi and the Insurance Company, concluded that the driver alone was negligent and the claimants would be entitled to the compensation of Rs. 1,88, 500/-, out of which the owner of the Taxi has to pay Rs. 1,38,500/- and the Insurance Company has to pay Rs. 50,000/- being limited liability. 7. It is mainly contended by the counsel for the appellant, the owner of the taxi, that the Tribunal ought to have held that the driver R.W. 4 was not negligent by accepting his evidence and by rejecting the evidence of the eye-witness P.W. 2, and that at any rate, the owner of the taxi would not be liable to pay any amount, as the vehicle was insured as a Comprehensive policy with the Insurance Company and that therefore, the Insurance Company alone is liable to pay entire amount of compensation fixed by the Tribunal. 8. On the other hand, the counsel for the Insurance Company, by pointing out the relevant portion of the finding of the Tribunal and the deposition of the witnesses concerned, would submit that the finding with reference to the limited liability of the Insurance Company by the Tribunal is correct and unassailable. 9. The counsel for the claimants/respondents herein is also heard. 10. I have carefully considered the rival contentions and perused the records. 11. With regard to negligence, the claimants have clearly established that the driver of the taxi went to a wrong side and dashed against the motor cyclist. 12. P.W. 2, who is the resident of the area in which the accident took place, is the eyewitness. According to him, when he was standing on the southern side of the T.B. Road in the rickshaw stand, the Ambassador Car came from east to west and after overtaking a auto-rickshaw, which was going ahead of it, hit against the motor cyclist at the extreme end, i.e., on the northern side as a result of which the motorcyclist fell down and sustained injuries. There is no reason to reject the evidence of P.W. 2, since his statement is fully corroborated by the rough Sketch marked as Ex. A- 12 in this case. 13. According to R.W. 4 driver of the taxi, the motor cyclist suddenly over took a bus and hit against the tourist taxi without noticing that the tourist taxi was coming in the opposite direction. This cannot be true in view of Ex. A-12 sketch. Under these circumstances, the Tribunal is correct in rejecting the evidence of R.W. 4 holding that the driver of the taxi alone was negligent. 14. The point urged as an alternative in this case, which is quite interesting, is that the policy is a comprehensive policy and that therefore, the owner of the vehicle cannot be directed to pay the compensation and the Insurance Company alone is liable to pay the entire amount of compensation and that the limited liability of Rs. 50,000/- fastened on the Insurance Company cannot be said to be legal. 15. It is also contended that the finding with reference to the limited liability of Rs. 50,000/- fastened on the Insurance Company is not sound by pointing out the portion of the evidence given by the witness R.W. 1 that they had received excess amount of Rs. 20/- and the same was not returned later and that the word comprehensive policy was mentioned in Ex. B-8. 16. The learned counsel appearing for the appellant, thus, would vehemently contend that the Insurance Company shall be fastened with the unlimited liability. 17. This contention, in my view, does not have any substance in view of the materials available on record. R.W. 1 is the Development Officer of the Insurance Company. He would specifically state by marking Ex. B-2 copy of the Insurance Policy that the policy covers only limited liability of Rs. 50, 000/-. In the cross-examination, nothing has been elicited from him to indicate that it is a comprehensive policy involving unlimited liability. 18. On the other hand, R.W. 1, the Development Officer of the Insurance Company would state that the vehicle was not a private car and it is a tourist taxi and that there would be unlimited liability only for a private car. The only suggestion put to him in the cross-examination is that it was not a tourist taxi. 18. On the other hand, R.W. 1, the Development Officer of the Insurance Company would state that the vehicle was not a private car and it is a tourist taxi and that there would be unlimited liability only for a private car. The only suggestion put to him in the cross-examination is that it was not a tourist taxi. In the re-examination, he would further state that the party has to pay Rs. 50/- more to make the policy for unlimited liability. 19. The relevant evidence given by R.W. 1 is given as follows: Tamil 19-A. R.W. 2 is the Branch Officer of the Insurance Company through him Exs. B-4, B-5 and B-6 were marked. On the basis of these documents, he would also state that the Insurance Policy in question would cover only the limited liability of Rs. 50,000/-. In the cross-examination, he would admit that excess amount of Rs. 20/- was received and he sent back the same through refund voucher. He would further clearly state that along with Rs. 1,526/-, the party has to pay the excess premium of Rs. 50/- to cover the unlimited liability. 20. The relevant portion of the deposition of R.W. 2 is as follows:— Tamil 21. It is clear from the evidence of R.Ws. 1 and 2 on the strength of the documents marked that the Policy coverage was only with reference to the limited liability of Rs. 50,000/-. 22. The owner of the taxi the appellant herein was examined as R.W. 3. While referring about Exs. B-2 to B-9, he would state that he paid Rs. 1,546/- as premium for unlimited liability. But this statement would not be of any use to hold that the policy covers the unlimited liability in view of the evidence of R.Ws. 1 and 2. 23. Moreover, though R.W. 3 would say that Ex. B-4 is not the policy given to him, he has not produced the policy given to him before the Tribunal. He would also state that he took comprehensive policy and the same was pledged with the bank. Even then, he had not taken any step to produce the said policy. As a matter of fact, R.W.I was again recalled and he had produced Ex. B-8 cover note given to him and Ex. B-9 communication. 24. In Ex. He would also state that he took comprehensive policy and the same was pledged with the bank. Even then, he had not taken any step to produce the said policy. As a matter of fact, R.W.I was again recalled and he had produced Ex. B-8 cover note given to him and Ex. B-9 communication. 24. In Ex. B-9, it is stated as follows:— “ We advise that we have debited your above mentioned loan account Rs. 1,546/- on 13.8.87 being the insurance premium paid to National Insurance Company Ltd for the period 22.8.87 to 21.8.88. The premium was paid by Madurai Branch in favour of National Insurance Co Ltd. The D.D. No. is 977 dated 13.8.87,” 25. This does not show the policy coverage for unlimited liability. This would merely say that he had paid Rs. 1,546/- towards the policy. On the other hand, in Ex. B-4, it is stated that the liability of the company is limited to Rs. 50,000/-. The net premium due was Rs. 1,526/-. 26. Now, it is argued that merely because excess amount of Rs. 20/- was paid, it must be deemed to be a comprehensive policy, in the absence of the return of the same. As stated earlier, the specific evidence of R.Ws. 1 and 2, unless an excess of Rs. 50/- is paid, the third party liability cannot be an unlimited liability. 27. In this context, the counsel appearing for the claimants cited an unreported decision rendered by Honble Sathasivam, J. in A.A.O. No. 249 of 1987 dated 20.10.96 to substantiate the plea that the. Insurance Company cannot restrict its liability upto 50 percent, when it has not been established by producing the records. This decision would not be of any use to come to such a conclusion in the present case, as in my view, the materials Exs. B-2 to Ex. B-9 would make it clear that the Insurance Company established that the policy in question would cover only a limited liability of Rs. 50,000/-. 28. It is well settled law that the right to claim compensation by the claimants in connection with the motor vehicles accidents should not be defeated on technical grounds. It is equally settled law that unless it is established on the materials on record that the policy was taken only for minimum liability as provided under the Act by the Insurance Company, it cannot disown its responsibility. It is equally settled law that unless it is established on the materials on record that the policy was taken only for minimum liability as provided under the Act by the Insurance Company, it cannot disown its responsibility. In other words, the burden is on the Insurance Company to prove by placing acceptable evidence. 29. As pointed out by me earlier, the officers of the Insurance Company, viz., R.Ws. 1 and 2 have clearly established by producing the relevant records that the policy in question covered only a limited liability of Rs. 50,000/-. 30. It has also been held in New India Assurance Company Limited v. K. Chandra (1991 A-C.J, 386 1992 A.C.C 531 (DB) Madras) that under Section 95(2)(b) of the Act, the Insurance Company is not liable to pay anything more than the amount limited by the statute unless the policy contains a different provision. 31. The learned counsel by pointing out the word comprehensive mentioned in Ex. B- 8, would argue that it is deemed to be a policy covering unlimited liability. This is not correct in view of the following observation of the Apex Court in National Insurance Company Ltd. v. Jugal Kishore (1998 A.C.J. 270) is quite relevant. “ 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 paid therefore. This is the requirement of the Tariff Regulations framed for the purpose,” 32. Hence, I am unable to accept any one of the arguments of the learned counsel for the appellant and I am in entire agreement with the conclusion reached by the Tribunal with regard to the limited liability of the Insurance Company. 33. This is the requirement of the Tariff Regulations framed for the purpose,” 32. Hence, I am unable to accept any one of the arguments of the learned counsel for the appellant and I am in entire agreement with the conclusion reached by the Tribunal with regard to the limited liability of the Insurance Company. 33. Therefore, I do not find any ground to interfere with the finding of the Tribunal with reference to the liability fastened on the appellant. 34. In the result, the order of the Tribunal is confirmed and the appeal is dismissed, as devoid of merits. No costs.