Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 3186 (RAJ)

Uma Ben v. Anand Prakash

2005-12-02

VINEET KOTHARI

body2005
Judgment Dr. Vineet Kothari, J.-These three appeals arise out of the award of the MACT Phalodi while deciding the claim case No. 61/1994 (140/1986) dated 25.07.1997. 2. In an accident which occurred on 23.05.1986 at about 02:15 P.M. near Bawri village between Bus No. RRN-4135 and Mini Loading Truck No. GRX-4170, the driver of the Mini Loading Truck No. 4170 Mr. Amrish Chandra Durga Prasad Shukla aged 32 years died. 3. The Tribunal while deciding the issue Nos. 1, 2 and 4 found it to be a case of contributory negligence of both the drivers and decided the percentage of such contributory negligence to the extent of 40% of the driver of the bus and 60% of the deceased driver of the mini truck himself . The Tribunal computed the compensation for the death of said driver Mr. Amrish Chandra to the extent of Rs. 3,45,600/-and out of that Respondent Nos. 1, 2 and 4 were held liable to pay Rs. 1,58,240/-to the extent of 40%. 4. The Insurance Company paid Rs. 15,000/-towards no fault liability and further Rs. 50,000/-claiming its liability to be limited under Statute namely Section 95(2) (b) (i) of the Motor Vehicle Act, 1939. 5. The Appeal No. 5/1998 has been filed by the claimants on the ground that the learned Tribunal has erred in finding the deceased driver liable to the extent of 60% and also on the ground that the compensation awarded was very low and the same deserves to be enhanced. 6. The owner of the bus has filed the Appeal No. 238/1998 on the ground that the driver of the mini truck himself was solely negligent and, therefore, the Tribunal has erred in holding the driver of the bus liable to the extent of 40%. 7. The appeal of the Insurance Company is on the ground that its liability is limited under Statute i.e., old law under Section 95(2) (b) (i) of the said Act and, therefore, its total liability in the present case cannot be exceed Rs. 50,000/-and Rs. 15,000/-paid by it under no fault liability clause should be adjusted against the said overall liability of the Insurance Company to the extent of Rs. 50,000/-. 8. 50,000/-and Rs. 15,000/-paid by it under no fault liability clause should be adjusted against the said overall liability of the Insurance Company to the extent of Rs. 50,000/-. 8. Learned Counsel for the Insurance Company Shri Mehta relies upon the constitutional Bench Judgment of Honble Supreme Court in the case of New India Assurance Company Limited vs. C.M. Jaya & Ors., reported in AIR 2002 SC 651 and National Insurance Company vs. Jugal Kishore, reported in 1998 ACJ 270 in support of his submissions. 9. I have heard learned Counsel and perused the record. 10. From the perusal of the Site Plan and the photographs of the two vehicles involved in the said accident on record and the statements of the witnesses, it appears that the driver of the said Mini Truck No. GRX 4170 took his vehicle to the extreme right side of the road i.e., wrong side and hit on the driver side of the bus which was coming from opposite direction. It also appears from the photographs Exhibit D/3 which are on record that as a result of the said impact, the bus stopped on the left hand side of the road, just in front of a tree and the said mini truck after hitting the said driver side of the bus, was standing on the right hand side of the road in a diagonal position. 11. In view of said positions of vehicles, there appears to be no basis for the Tribunal arriving at the finding of contributory negligence to the extent of 40% by the bus driver and 60% negligence of the deceased of the mini truck. The driver of the mini truck seems to be solely responsible for the said accident and, therefore, the Tribunal ought to have held him solely responsible. 12. According, the appeal of the claimant appellant on this ground deserves to fail and the appeal of the owner of the bus succeeds to that extent. 13. As far as the case of Insurance Company is concerned, the same also appears to be justified on the basis of Judgment s relied upon by the learned Counsel appearing for the Insurance Company. 13. As far as the case of Insurance Company is concerned, the same also appears to be justified on the basis of Judgment s relied upon by the learned Counsel appearing for the Insurance Company. The objection raised by the learned Counsel for the claimant appellant is that since nobody has appeared on behalf of the Insurance Company before the Tribunal and proved the Insurance Policy, therefore, the Insurance Company cannot take advantage of the limited liability under the Statute. I am unable to accept this submission of the learned Counsel for the appellant. The liability of the Insurance Company could be statutory or contractual. A statutory liability cannot be more than what is prescribed under the Statute itself . However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover the wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the case obtaining before the Honble Supreme Court in C.M. Jayas case (Supra), also the policy in question was comprehensive policy, but since it was not shown that any additional or higher premium was paid to cover unlimited or higher liability than the statutory liability fixed as found in the term of the policy, the Insurance Policy produced before the Court, shows that the liability of the Insurance Company is limited to Rs. 50,000/-. The Court held that the liability of the Insurance Company was limited by the statutory provisions of the old Act and, therefore, nothing beyond that could be paid by the Insurance Company. 14. As far as question of adjustment of no fault liability paid by the Insurance Company is concerned, there seems to be no justification in not allowing that adjustment of Rs. 15,000/-paid by the Insurance Company against the overall liability of Rs. 50,000/-as per Section 95(2)(b)(i) of the old Act. The same would be allowed to the Insurance Company. 15. 14. As far as question of adjustment of no fault liability paid by the Insurance Company is concerned, there seems to be no justification in not allowing that adjustment of Rs. 15,000/-paid by the Insurance Company against the overall liability of Rs. 50,000/-as per Section 95(2)(b)(i) of the old Act. The same would be allowed to the Insurance Company. 15. In view of the finding given above that the deceased driver of the mini truck in question was solely liable and negligent, the question of enhancement need not be considered by this Court because if the owner of the bus is not held liable and the liability of the Insurance Company is held to be limited which it has already paid, then the enhancement, if any, awarded to the claimant would also be of no consequence. 16. In the result, the appeal filed by the claimants is dismissed and the cross appeals filed by the Insurance Company and owner of the bus are allowed as indicated above.