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2005 DIGILAW 689 (RAJ)

Oriental Insurance Company v. Jharna

2005-03-01

DINESH MAHESHWARI

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the parties. 2. The chequered history of the case shows that the claimant-respondent while travelling in the Matador met with an accident on 211.1985. At that time she was minor child and suffered permanent disability as a result of brain injury and her left side was totally paralyzed. The accident was caused as a result of collision between the Matador and a Luxury Bus. 3. The Motor Accident Claims Tribunal, Udaipur awarded Rs. 30,000/-as a compensation to be shared by both the Insurance Company with which the respective vehicles were insured. 4. Aggrieved with the meagreness of the amount, the appeal was preferred by the claimant for enhancement of the compensation. The learned Single Judge, considering the aforesaid facts and circumstances, enhanced the amount of compensation to Rs. 1,50,000/-. Before the learned Single Judge, the Counsel appearing for both the Insurance Companies submitted that since the claimant was travelling in a Matador as a passenger, the liability of the Insurance Company could be Rs. 15,000/-only as provided under Section 95(2)(b) of the Old Act. However, no such plea regarding liability of Rs. 15,000/-was taken by the respondent No. 7; National Insurance Company, the insurer of Luxury Bus. 5. The learned Single Judge found that the Policy under which the plea of limited liability was urged, has not been produced before the Tribunal and no such plea was taken before the Tribunal, therefore, the same is not permitted to be raised in this appeal. Apparently, the insurer could not know in advance what is ultimately the amount compensation to be determined by the Tribunal, still, no such plea was taken even when the claim was of much higher amount. In the absence of the document before it, the Court did not go into this question and directed that the appellant shall recover additional sum of Rs. 1,20,000/-in equal proportion as awarded by the learned Tribunal. 6. The accident took place on 211.1985. The award was made on 26.02.1993 by the Motor Accident Claims Tribunal, Udaipur and the Judgment under appeal was rendered on 17.05.1995 against the determination of compensation. The Insurance Companies were not aggrieved with the award. However, against requiring them to share the liability of payment of compensation jointly and severally, these two appeals have been filed. The award was made on 26.02.1993 by the Motor Accident Claims Tribunal, Udaipur and the Judgment under appeal was rendered on 17.05.1995 against the determination of compensation. The Insurance Companies were not aggrieved with the award. However, against requiring them to share the liability of payment of compensation jointly and severally, these two appeals have been filed. Almost, 10 years have elapsed, still, the appellants have not been able to serve all the respondents. 7. Looking to the fact that the amount of compensation awarded to the respondent-claimant for the injuries sustained by her has not been objected before the learned Single Judge and the fact that the Insurance Policy which could be the foundation for finding out the liability undertaken by the Insurer has not been placed on record and the fact that even now if the appellants (both the Insurance Companies) are permitted to resort to substituted service by publishing the notice in any newspaper or repute, which is likely to cost much more than the amount of compensation to be shared, we are of the opinion, this is not the case in which the Insurance Company who failed to produce the document, were obstructed by any one from producing the same. The fact that amount of compensation claimed by the victim was much higher than the limit of liability sought to be pleaded for the first time before this Court, still no objection about its limited liability was raised in fact leads to adverse inference against the appellants, about the terms of the Policy. 8. In these circumstances and looking to the fact that the respondent No. 1 has already been served, we are not inclined to wait for service on other respondents and the appeals are dismissed.