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2006 DIGILAW 1359 (JHR)

National Insurance Company v. Pano Hansda

2006-11-27

DILIP KUMAR SINHA, M.Y.EQBAL

body2006
ORDER 1. This appeal filed by the Insurance Company is directed against the Judgment and Award dated 28.2.2004 passed by the 1st Additional District Judge- cum-Motor Vehicle Accidents Claims Tribunal, Chaibasa in compensation case No. 85 of 1988 awarding compensation of Rs. 1,65,000/- and fixed the liability upon the appellant/Insurance C6mpany. 2. The facts of the case lie in a narrow compass: On 22.2.1988 the deceased Dukhu Hansda was coming from Champua to Jamshedpur by bus bearing registration No. BRS 4450. The bus was over crowded and was being driven rashly and negligently which resulted in an accident and the deceased succumbed to the injuries. The appellant-Insurance Company contested the case on the ground inter alia that the liability of the Insurance Company under the policy and also under the provisions of Section 95 of the Motor vehicles Act is restricted to Rs. 15,000/-. The Tribunal after hearing the parties assessed the compensation and held that the entire amount is to be paid by the appellant-Insurance Company. 3. Mr. D.C. Ghose, learned Counsel appearing for the appellant-Insurance Company assailed the impugned judgment and award as being illegal and contrary to the terms and conditions of the insurance policy. Learned Counsel submitted that the accident took place on 22.2.1988 when the Old Motor Vehicles Act was in force, wherein liability of the Insurance Company in respect of the passenger is restricted to Rs. 15,000/-. Learned Counsel drawn our attention to Ext. A which is Insurance Policy and submitted that no extra premium was paid for covering unlimited liability and, therefore, the Tribunal has erred in law in fastening the entire liability upon the Insurance Company. 4. Mr. M.K. Dey, learned Counsel appearing for the owner of the vehicle submitted that the liability determined by the Tribunal needs no interference by this Court. Learned Counsel submitted that the Tribunal has given liberty to the appellant Insurance Company to realize excess amount from the owner of the vehicle. For better appreciation paragraphs 23, 24 and 25 is worth to be quoted herein below: The learned lawyer of the O.P. No. 1 has argued that since the vehicle in question was covered under a valid Insurance Certificate at the time of alleged accident, so the entire compensation amount payable in the present case is to be paid by the Insurance Company to indemnify the owner of the vehicle. It is also argued that the driver of the offending vehicle was also holding a valid driving licence at the time of said accident,. which was renewed upto 24.2.1991 from 26.1.1984, The driver has also authorized to drive H.M.V. as would appear from Ext. B. So the Insurance Company cannot deny its liability. On the other hand, the learned lawyer of the O.P. Insurance Company has argued that under M.V. Act as amended in the year 1982 the liability to pay compensation in case of death of the deceased in a motor vehicle accident by the Insurance Company is limited only upto Rs. 15,000/-, in case of death of a passenger of a stage carriage. In support of his contention the learned lawyer of the O.P. Insurance Company has referred case law reported in AIR 1995 SC 1113 and argued that in the said case law it has been held that regarding the liability of Insurance Company to 3rd party risk in case no special contract between the company and the owner of the vehicle to cover unlimited liability- premium @ 12 passenger paid by owner as stated in Tariff of Company to cover liability of accident to passanger Held, policy covered only statutory liability of Rs. 15,000/- and it is immaterial that the Insurance Company has a comprehensive policy. On the other hand, the learned lawyer of the owner O.P. of the vehicle has argued that from perusal of certificate of Insurance, Ext. A it would appear that in the present case liability of Insurance Company was not limited as nothing has been mentioned in column B of the said policy that liability of the Insurance Company was limited only to the extent of Rs. 15,000/- per passenger. In this regard the learned lawyer of the applicants has argued that the entire compensation amount is to be paid by the O.P. Insurance Company to the applicants to indemnify the owner of the offending vehicle, being the Insurer of the said vehicle so far the liability to pay compensation to 3rd party is concerned and the O.P. Insurance Company can recover the balance amount from owner s of the vehicle, if its liability was limited. In this regard he has referred a case law reported in AIR 1985 Del 398 and argued that in the said case law it has been held that in case of comprehensive insurance cover Insurance Company should itself pay entire sum without reference to the limit it would then seek contribution from the owner. 5. We have perused Ext. A, which is the insurance policy of the bus. The carrying capacity of the bus was shown as 52 and for each passenger, premium of Rs. 12/- which is mandatory under the Act, was paid. The total amount of premium paid for 52 passengers was Rs. 624/- covering limited liability of each passenger. According to the policy, therefore, the liability of the Insurance Company in respect of the passenger is restricted to Rs. 15,000/-. Prima facie, therefore, unlimited liability of the Insurance Company was not covered under Ext. A, the Insurance Policy. The Tribunal has not come to a finding that liability of the Insurance Company was unlimited. In that view of the matter, the Insurance Company is not liable to pay the entire compensation amount and realize the excess amount from the owner of the vehicle. When under the Motor Vehicle Act which was in force at the time of accident and under the Insurance Policy the liability of the Insurance Company was restricted then no direction can be given to the Insurance Company to pay excess amount and recover the same from the owner of the vehicle. The impugned judgment and award, therefore, cannot be sustained in law and need to be modified. 6. For the aforesaid reasons, this appeal is allowed in part and it is held that respondent-owner of the vehicle shall pay balance compensation amount to the claimants. Learned Counsel for the appellant submitted that Insurance Company has already paid the amount to the extent of its liability i.e. Rs. 15,000/-.