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Rajasthan High Court · body

2009 DIGILAW 1669 (RAJ)

Madhu v. Ashok Kumar

2009-07-23

VINEET KOTHARI

body2009
JUDGMENT 1. - These four appeals arise out of accident which took place on 1.10.1989 between Matador registration No. GUH-9071 and truck No. RJS-5484 at Sanawada, Distt. Sirohi in the State of Rajasthan and in the said accident, one Bhalla Ram and another person Ismile who were travelling in the said Matador died and another person Mohan Lal got injured. 2. S.B.C.M.A. No. 88 of 1995 has been filed by the claimants - legal representatives of the deceased Bhalla Ram seeking enhancement of compensation awarded by the Tribunal vide award dated 22.3.1994 to the extent of Rs. 2,26,000/- with interest at the rate of 12 per cent per annum. It is stated at the Bar that in pursuance of the said award, the entire compensation of Rs. 2,26,000/- with interest stands paid by insurance company to the said claimants. 3. The learned counsel for the claimants Mr. Rajesh Panwar sought to raise certain pleas about the enhancement of the said compensation, but it is found that learned Tribunal has discussed the entire evidence and since deceased Bhalla Ram was a Government servant, a peon, class IV employee in Government school, his salary as per the Government record was taken into account and the Tribunal considering all the facts and circumstances appears to have awarded sufficient compensation for the said death. This court is of the opinion that no further enhancement is required to be made in the said compensation and, therefore, this S.B.C.M.A. No. 88 of 1995 is found to be devoid of merit and the same is accordingly dismissed. 4. In remaining three appeals, learned counsel for the insurance company raised an argument that since the new Act came into force on 1.7.1989 and the said accident took place on 1.10.1989, therefore, the policy in question was deemed to be in force for a period of four months in accordance with the proviso to section 147 (2) of the Motor Vehicles Act, 1988 but the liability of the insurer would be limited as per section 95 (2) of the old Act of 1939. Learned counsel for the insurer sought to distinguish the judgment of Hon'ble Apex Court in the case of National Insurance Co. Learned counsel for the insurer sought to distinguish the judgment of Hon'ble Apex Court in the case of National Insurance Co. Ltd. v. Behari Lal, 2000 ACJ 1428 (SC) and submitted that notwithstanding provisions of section 217 (2) (c) of the Act laying down that any document referring to any of the repealed enactment or the provisions thereof, shall be construed as referring to this Act or to the corresponding provisions of this Act, i.e., the Act of 1988, the liability of the insurance company would continue to be limited liability under the insurance policy in question which was deemed to be alive for a period of four months by virtue of proviso to section 147 (2) of the Act of 1988. 5. The learned counsel for the insurance company sought to place reliance on the decision of Hon'ble Apex Court in the case of New India Assurance Co. Ltd. v. C.M. Jaya, 2002 ACJ 271 (SC). 6. On the other hand, the learned counsel for the claimants urged that the said decision of the Hon'ble Apex Court in the case of C.M. Jaya, 2002 ACJ 271 (SC), did not apply to the facts of the present case as in the case of C.M. Jaya (supra) admittedly, the date of accident was 3.1.1989, i.e., prior to coming into force of the new Act of 1989 which came into force on 1.7.1989. Learned counsel for the claimants also submitted that the judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Learned counsel for the claimants also submitted that the judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Behari Lal, 2000 ACJ 1428 (SC), squarely dealt with this very question and held that if the accident occurred within a period of 4 months of the commencement of the new Act, then not only the policy taken prior to 1.7.1989 would be deemed to continue to be in force for a period of 4 months after such commencement, but by virtue of section 217 (2) (c) of the Act, since reference to the provisions of old Act was to be substituted by reference to the provisions of the new Act, the liability under such insurance policy which was to be deemed to be in force for aforesaid period of four months from 1.7.1989, the liability of insurance company would not be limited with reference to section 95 (2) of the old Act of 1939, but such liability would be to the extent of liability incurred with reference to section 147 (2) of the new Act of 1988. 7. Having considered the rival submissions and upon perusal of the ratio of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Behari Lal, 2000 ACJ 1428 (SC), which has been followed by the coordinate Bench of this court in the case of United India Insurance Co. Ltd. v. Shilpa, 2009 ACJ 1806 (Rajasthan) , this court is of the opinion that the issue involved in the present case is no longer res Integra and stands decided by the decision of the Hon'ble Supreme Court which has binding force and which has been followed even by this court in the case of United India Insurance Co. Ltd. v. Shilpa (supra). It would be appropriate to reproduce the relevant part of the decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Shilpa (supra). It would be appropriate to reproduce the relevant part of the decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Behari Lal (supra), which reads as under: "(12) From the above discussion, it follows that the proviso to sub - section (2) of section 147 does not limit the liability of insurance companies to payment of compensation to the extent specified in the policy of insurance in terms of section 95 (2) of the old Act which is in force before the commencement of the new Act for a period of four months after commencement of the new Act or till the date of expiry of such a policy, whichever is earlier. In this view of the matter, we endorse the view taken by the Division Bench of the High Court of Gujarat in Kacharabhai L. Limbachia v. Ratansinh J. Rathod - Patelia, 1998 ACJ 326 (Gujarat) and by the Division Bench of the Punjab and Haryana High Court in National Insurance Co. Ltd. v. Puja Roller Flour Mills Pvt. Ltd., 1997 ACJ 698 (P&H). (13) It is, however, submitted that a Division Bench of Kerala High Court took a contrary view in New India Assurance Co. Ltd. v. Paramu, 1991 ACJ 33 (Kerala) . Inasmuch as in that case the policy under which the insurance company was held liable, was issued on 11.5.1983 and was noted to have expired on 10.3.1984 long prior to coming into force of the new Act and the question with which we are concerned here, neither arose nor was it dealt with in that case, so it has no bearing on the issue. (14) In the instant case, the policy was issued on 28.10.1988 and it was valid up to 27.10.1989. The new Act came into force on 1.7.1989 and the accident occurred on 4.9.1989, after the new Act came into force but before the expiry of the policy in force. On these facts the liability of the insurance company will be governed by sub - section (2) (a) of section 147 of the new Act, namely, the amount of liability incurred but not under section 95 (2) of the old Act. The High Court is, therefore, right in allowing the appeal of the respondents claiming the whole amount of compensation awarded by Tribunal from the insurance company. The High Court is, therefore, right in allowing the appeal of the respondents claiming the whole amount of compensation awarded by Tribunal from the insurance company. We find no merits in this appeal. It is accordingly dismissed with costs." 8. In view of the aforesaid settled legal position, this court finds no force in the contentions raised by the learned counsel for the insurance company and, therefore, the three appeals, namely, S.B.C.M.A. No. 371 of 1994 - New India Assurance Co. Ltd. v. Madhu; S.B.C.M.A. No. 618 of 1997 - New India Assurance Co. Ltd. v. Jubeda Bano and S.B.C.M.A. No. 620 of 1997 New India Assurance Co. Ltd. v. Mohan Lal are liable to be dismissed and the same are accordingly dismissed. No order as to costs.Appeals dismissed. *******