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2011 DIGILAW 671 (DEL)

Gurcharan Kaur v. Raja Ram

2011-07-11

REVA KHETRAPAL

body2011
JUDGMENT : Reva Khetrapal, J. This appeal seeks to assail the award dated 3rd September, 1987 passed by the Motor Accident Claims Tribunal, Delhi in Suit No. 186/80 instituted on 29.12.1980 on the ground that the award amount is meagre and inadequate. At the outset, it may be mentioned that this case has a chequered history, Initially this appeal was dismissed in limine on 26.7.1988 by a learned Single Judge of this Court. A Letters Patent Appeal, being LPA No. 49 of 1988, was filed against the said dismissal in limine, which was decided on 15.2.2001 by a Division Bench of this Court, enhancing the award amount to Rs. 1,52,000/- with interest thereon. A review application, being CM No. 1147/2001, was filed against this judgment on the ground that the Counsel for the Insurance Company was present in the Court and yet it was recorded that none had come forward to represent the Insurance Company. The review application was allowed by passing the following order: Respondent Insurance Company has filed this application seeking review of Court order dated 15.2.2001 "on the ground that company's Counsel Ms. Saroj Bidawat was present in the Court and yet it was recorded that nobody had come forward to represent Insurance Company to show that its liability was limited to Rs. 50,000/- only. She has subscribed an affidavit in support. Instead of holding any further inquiry to find out whether or not Insurance Company's Counsel was present, we find that the company had gone unheard in showing the extent of its liability. Therefore, interest of justice would demand that the company was heard in the matter afresh on merits. Application is accordingly allowed in view of this and Court Order dated 15.2.2001 is set aside. LPA 49/1988 shall revive and be considered and disposed of afresh. The amount deposited by Insurance Company pursuant to the impugned Court order shall remain intact till the disposal of LPA. Registry is directed to list LPA for disposal on 25th April, 2003. 2. Eventually, by its judgment dated 5.10.2009 the Division Bench disposed of the LPA sending the matter back to the Single Bench with the direction to the Single Judge that the same be disposed of on merits by passing a speaking order. This is how the appeal has come up for hearing before this Court. 3. 2. Eventually, by its judgment dated 5.10.2009 the Division Bench disposed of the LPA sending the matter back to the Single Bench with the direction to the Single Judge that the same be disposed of on merits by passing a speaking order. This is how the appeal has come up for hearing before this Court. 3. It is apparent from a perusal of the Grounds of Appeal that the appellants are aggrieved by the manner in which compensation was assessed by the Motor Accident Claims Tribunal relating to the death of late Baldev Singh, who died in a road accident on 17.6.1980. The deceased Baldev Singh was unmarried and the appellants are his parents, who had filed the claim petition u/s 110A of the Motor Vehicles Act, 1939, seeking compensation for his untimely demise in the sum of Rs. 2,40,000/- with interest @ 12% per annum with effect from the date of the filing of the claim petition till payment. It is alleged by the appellant-claimants that Baldev Singh was driving a two-wheeler scooter No. DLQ 9533 and was going from the Shahdara side to Delhi when tempo No. DHL 8945, driven rashly and negligently by the respondent No. 1, came from the Delhi side and after going, on the wrong side of the road, hit the two-wheeler scooter with its right front side, as a result of which Baldev Singh (hereinafter referred to as "the deceased") fell down and sustained fatal injuries. 4. The Claims Tribunal on the basis of the evidence adduced by the appellants including the evidence of the eye witness, held that the deceased had received fatal injuries as a result of the rash and negligent driving of the offending tempo by the respondent No. 1. After observing that the age of the deceased was 25 years 3 months, as on 17.6.1930, as per his birth certificate, the Claims Tribunal noted that according to PW-6 Jawandh Singh (the appellant No. 2), the deceased was employed by him at a salary of Rs. 750/- per month in his business, which he was carrying on in the name and style of M/s. Chawla Cycle Works, Railway Road, Shahdara The Tribunal further noted that in the claim petition, the salary of the deceased was stated to be Rs. 700/- per month and there was a discrepancy in this regard. 750/- per month in his business, which he was carrying on in the name and style of M/s. Chawla Cycle Works, Railway Road, Shahdara The Tribunal further noted that in the claim petition, the salary of the deceased was stated to be Rs. 700/- per month and there was a discrepancy in this regard. It further noted that PW-6 Jawandh Singh in his statement had deposed that his son was studying in B.Com. in the evenings and was working in his cycle shop in the mornings; and that in his cross-examination, PW-6 had stated that he had three employees besides his son, and those employees were getting Rs. 200/- to Rs. 150/- per month, but no receipt was being taken by him for disbursement of salary to them. He had denied the suggestion that his son was not studying in Shyam Lal College, but volunteered to state that his name might have been struck off due to his absence from college as he was working in the shop. The Tribunal also noted that PW-7 Bodh Raj and PW-8 Desh Raj, who were independent witnesses, being shopkeepers in the same vicinity, had corroborated the fact that the deceased was doing the work for Jawandh Singh in the shop, as also PW-9 Gurcharan Kaur, the mother of the deceased and PW-10 Kishan Singh, the uncle of the deceased. 5. On the basis of the aforesaid evidence, the Claims Tribunal concluded that the appellant No. 2, who was the father and employer of the deceased, was not dependent on the deceased at all, inasmuch as he himself was paying salary to the deceased amounting to Rs. 700/- per month for his expenses. Assuming the salary of the deceased to be Rs. 700/- per month and further assuming that the deceased was spending at least 50% of the amount on his personal expenses, the Claims Tribunal concluded that the deceased might be contributing a sum of Rs. 350/- per month to his mother. The Tribunal then proceeded to observe that the mother of the deceased was also not dependent on the deceased as her husband was running a "flourishing business", but nevertheless held that, in its opinion, the multiplier of 20 could be applied in this case by assessing the total loss to the family at Rs. 200/- per month, as out of Rs. 200/- per month, as out of Rs. 350/- which the deceased might be paying to his mother, he was getting meals and clothing from the joint family and was also maintaining a scooter. Thus, applying the multiplier of 20 to the assessed dependency of Rs. 200/- per month, the Tribunal calculated the compensation which should be awarded to the appellants to be in the sum of Rs. 48,000/-, i.e., Rs. 200/- per month x 12 months x 20. It then observed that since the Insurance Company had admitted its liability up to Rs. 50,000/-, the entire amount of Rs. 48,000/- plus 12% interest thereon would be paid by the Insurance Company to the appellant Nos. 1 and 2 in equal shares. 6. From the aforesaid, it is apparent that since the Tribunal had awarded compensation in the sum of Rs. 48,000/-, the Tribunal had not decided on the issue of the policy being limited in liability up to Rs. 50,000/-. The Division Bench in its order dated October 5, 2009 accordingly observed that should the Single Judge enhance the compensation beyond Rs. 50,000/-, the issue of liability of the Insurance Company in terms of the policy of insurance would be decided by the Single Judge. Accordingly, it is proposed to first embark upon the exercise of examining the grievance of the appellants that the Tribunal has not made a proper assessment of the compensation of the economic loss suffered by them on account of the death of their son, before adverting to issue of limited liability. 7. Mr. Navneet Goyal, the learned Counsel for the appellants has taken the plea that the deceased was expected to live at least till the age of 70 years, and the learned Tribunal ought, therefore, to have capitalized the economic loss to the appellants at not less than Rs. 700/- per month. He contended that the Claims Tribunal altogether failed to appreciate that in due course of time, the earnings of the deceased would have increased and his contribution to his parents would have correspondingly increased. I find some substance in this contention of the learned Counsel for the appellants, though, in my opinion, the Claims Tribunal rightly assessed the income of the deceased at the time of his death to be Rs. 700/- per month. Adding 50% to the sum of Rs. I find some substance in this contention of the learned Counsel for the appellants, though, in my opinion, the Claims Tribunal rightly assessed the income of the deceased at the time of his death to be Rs. 700/- per month. Adding 50% to the sum of Rs. 700/- per month towards the future prospects and earnings of the deceased (keeping in view the fact that the deceased was a young man of 25 years and his income was bound to increase with the passage of time), the income of the deceased for the purpose of assessment of loss of dependency of the appellants works out to be in the sum of Rs. 1050/- per month, that is, Rs. 12,600/- per annum. Deducting one-half therefrom for the personal expenses of the deceased, the loss of dependency of the appellants comes to Rs. 6,300/- per annum. This figure must be enhanced by the application of an, appropriate multiplier. The age of the mother of the deceased at the time of his unfortunate demise was 47 years and thus the multiplier applicable in accordance with the judgment of the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 would be the multiplier of 13. Thus calculated, the loss of dependency of the appellants works out to Rs. 6,300 x 13 = Rs. 81,900/-, which may be rounded off to Rs. 82,000/-. 8. Since no non-pecuniary damages have been awarded and it is the contention of Mr. Navneet Goyal that the award deserves to be enhanced on this score also, a sum of Rs. 10,000/- towards the loss of love and affection of the deceased, a sum of Rs. 5,000/- towards his funeral expenses and a sum of Rs. 5,000/- towards the loss of estate of the deceased, that is, in all a sum of Rs. 20,000/-, is also awarded to the appellants. The total compensation payable to the appellants thus works out to be in the sum of Rs. 1,02,000/-. Resultantly, the award, in my opinion, deserves to be enhanced to the aforesaid extent. 9. Adverting now to the question of whether the liability of the Insurance Company was a limited one, limited to the sum of Rs. 50,000/- only, at the threshold a two-fold contention was put forth by Mr. Navneet Goyal, the learned Counsel for the appellants. 1,02,000/-. Resultantly, the award, in my opinion, deserves to be enhanced to the aforesaid extent. 9. Adverting now to the question of whether the liability of the Insurance Company was a limited one, limited to the sum of Rs. 50,000/- only, at the threshold a two-fold contention was put forth by Mr. Navneet Goyal, the learned Counsel for the appellants. The first was that the plea of limited liability was not available to the Insurance Company as no such plea was sought to be urged by the Insurance Company in the trial Court as was evident from the fact that no issue was framed by the Claims Tribunal in respect thereof. Alternatively, Mr. Goyal submitted that the insurance policy sought to be pressed into service in support of the plea of limited liability was not admissible in evidence. The learned Counsel for the appellants took me through the evidence of N.P. Sharma, Assistant Administrative Officer, who proved on record the insurance policy as Ex. RW1/1, to contend that Ex. RW1/1 was neither a carbon copy of the original insurance policy nor an office: copy, but a photostat copy which was certified as true copy. 10. The first contention of the learned Counsel for the appellants, that the plea of limited liability not having been raised by the Insurance Company before the trial Court, the said plea could not be pressed into service at the appellate stage, appears to me to be wholly misconceived. The Insurance Company in paragraph 17 of the written statement filed by it had raised a specific plea that the liability, if any, of the Insurance Company is limited to the extent formulated in Section 95 of the Motor Vehicles Act, 1939. It is no doubt true that the Claims Tribunal did not frame any separate issue with regard to the plea of limited liability nor it adjudicated upon the aspect of limited liability in the award, but the Tribunal has made a mention of the evidence adduced by the Insurance Company in this regard by referring to the testimony of RW1 N.P. Sharma. This witness in his testimony clearly stated that though the policy issued by the Insurance Company, was a comprehensive one, yet the liability of the Insurance Company was limited to Rs. This witness in his testimony clearly stated that though the policy issued by the Insurance Company, was a comprehensive one, yet the liability of the Insurance Company was limited to Rs. 50,000/- only He also proved on record the photostat copy of the office copy of, the insurance policy for the period 12.9.1979 to 11.9.1980 along with the Schedule to the policy, which was marked as "A". The witness further testified that notice was given to the insured to produce the original insurance policy and proved on record the postal receipt, the acknowledgment due card and the notice under Order 12 Rule 8 of the Code of Civil Procedure, The aforesaid documents were proved and exhibited to show that the insured did not produce the original insurance policy in his possession despite being called upon to produce the same. Thus, it cannot be said that no plea with regard to limited liability was raised by the Insurance Company before the Claims Tribunal and the aforesaid plea is being raised for the first time at the appellate stage. Even otherwise, a Division Bench of the Bombay High Court in the case of Marine and General Insurance Co. Ltd. and Others Vs. Balkrishna Ramchandra Nayan, AIR 1977 Bom 53 has held, and I think rightly, that even where the contention that the liability of the Insurance Company is limited u/s 95(2) is not raised before the Tribunal, in fairness, an opportunity should be given to the Insurance Company to raise such a point if it was open, to it at law to do so. This judgment was subsequently followed in the case of New India Assurance Co. Ltd. v. Shashikalabai and Others, 2008 (3) ACC 353 New India Assurance Co. Ltd. Vs. Shashikalabai Salone and Others, by a Single Judge pi the same High Court. In instant case, however, as noticed above, the insurance company in its written statement had clearly stated, while admitting its liability, that it was limited to the extent provided in Section 95 of the Motor Vehicles Act of 1939. 11. Adverting to the second contention of the learned Counsel for the appellants that the Insurance Company ought not to have been allowed by the Claims Tribunal to lead secondary evidence in respect of the insurance policy, the matter is no longer res Integra. 11. Adverting to the second contention of the learned Counsel for the appellants that the Insurance Company ought not to have been allowed by the Claims Tribunal to lead secondary evidence in respect of the insurance policy, the matter is no longer res Integra. Reference, may usefully be made in this regard to the judgment in the case of National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, AIR 1988 SC 719 wherein the Supreme Court has laid down that where the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof, it would be open to the Insurance Company concerned, if it wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability, to file a copy of the insurance policy along with its defence. Filing of a copy of the policy, it was held, not only cuts short avoidable litigation but also helps the Court in doing justice between the parties. 12. A Full Bench of the Punjab and Haryana High Court in the case of United India Insurance Company Ltd. Vs. Kamla Rani and Others, (1997) ACJ 1081 following the judgment of the Supreme Court in Jugal Kishore's case (supra), laid down that a certificate of insurance/policy issued by the Insurance Company, being a public document within the meaning of Section 74 of the Indian Evidence Act, the same can be proved by production of a certified copy u/s 77 of the said Act. It further held: If the insured, i.e., the owner of the vehicle disputes the correctness of the said certified copy, it is for him to produce the original which will be in his custody only. We are, therefore, of the opinion that certified copy of insurance policy is admissible in evidence u/s 74 read with Section 77 of the Indian Evidence Act without any formal proof. 13. In Oriental Fire and General Insurance Co. Ltd. Vs. We are, therefore, of the opinion that certified copy of insurance policy is admissible in evidence u/s 74 read with Section 77 of the Indian Evidence Act without any formal proof. 13. In Oriental Fire and General Insurance Co. Ltd. Vs. Veena Pruthi & Ors., (1989) ACJ 1163 a Single Judge of this Court, after noting that the owner of the offending vehicle did not produce the original policy and the Insurance Company thereupon produced the office copy of the policy albeit without the terms and conditions appended thereto, observed: Usually, in the file pertaining to the insurer, only the last page of the policy is annexed as the rest of the terms are the standard terms. The Tribunal held that the sheet produced by the insurance company without the terms and conditions cannot be accepted in evidence. The approach of the Tribunal was wholly erroneous. The Tribunal ought to have weighed the circumstances and evidence before it. When the owner had not produced the original copy, it was erroneous on the part of the Tribunal to hold the insurance company also jointly and severally liable for the entire amount. As stated above, the normal practice of insurance companies is to keep the relevant page or pages on the file of each insured showing how much of the premium is paid and risk of what amount is covered. The Tribunal also overlooked the fact that it is supposed, to make a summary inquiry where it cannot insist upon the technical rules of evidence. I have, therefore, no hesitation to accept the office copy of the policy produced by the insurance company. 14. Referring to the dicta laid down in the above case and endorsing the same, this Court in National Insurance Co. Ltd. Vs. Kamla Devi, (1997) 40 DRJ 785 held as under: 8. We are in complete agreement with the above decision and approach adopted. 9. The proceedings before the MACT are in the nature of an inquiry to determine just compensation and the provisions/rules of Indian Evidence Act are not applicable in their rigour. The MACT is not bound to strictly enforce provisions of Indian Evidence Act. The owner/insured had contended before the MACT that the Insurance policy had not been received and was not available. The MACT is not bound to strictly enforce provisions of Indian Evidence Act. The owner/insured had contended before the MACT that the Insurance policy had not been received and was not available. Accordingly, even under the proviso to Section 66 of the Indian Evidence Act, the appellant was entitled to lead secondary evidence, without service of any notice. The appellant had accordingly tendered in evidence the copies of the documents as available with it to prove factum of insurance and payment of premium. The mandate of the statute is to determine the just compensation. 15. In New India Assurance Co. Ltd. Vs. Devula Ramulu and Others, (1997) ACJ 1267 where a copy of the insurance policy was produced by the Insurance Company in support of its plea of limited liability, the Court observed as follows: It is also the common rule of evidence that if either of the parties fail to produce evidence and in such a case one of the persons who would fail in the case, the burden would rest upon him to establish a fact. Admittedly the vehicle was insured with the appellant. The respondent No. 2 is the owner of the vehicle in whose favour the policy was issued. It is not the case that he was not issued an insurance policy. He was the custodian of the insurance policy. He was bound to produce the insurance policy to establish contrary to the contents of Exh. A-5, the copy of the insurance policy, which was produced to show that the limit of liability of the insurance company was something different from the contents of the policy Exh. A-5 or something more than Rs. 15,000/- being the limit of the statutory liability. Even assuming that the appellant proved to have been resiled from the document, when a statute fixes the limit of liability, unless it is established that the parties to the insurance policy being the contract of insurance have agreed to be followed by another contract, the statute remains unaffected. In M.K. Kunhimohammed Vs. P.A. Ahmedkutty and Others, (1987) 3 SCR 1149 the Supreme Court has positively declared the law that the limit of liability u/s 95 Sub-section (2) is maximum. At the same time it has been held in National Insurance Co. Ltd., New Delhi Vs. In M.K. Kunhimohammed Vs. P.A. Ahmedkutty and Others, (1987) 3 SCR 1149 the Supreme Court has positively declared the law that the limit of liability u/s 95 Sub-section (2) is maximum. At the same time it has been held in National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, AIR 1988 SC 719 that it is open to the parties to enter into a contract to fix higher liability on payment of higher premium. In other words, the variation from the statutory liability can be a question which requires proof, in the absence of the same, the limit of statutory liability remains unaffected. This is one such case. 16. From the aforesaid, it may safely be concluded that the contention of Mr. Goyal that the insurance policy in the present case is inadmissible in evidence cannot be upheld. 17. It may also be mentioned at this juncture that in the present case, the record of the Claims Tribunal in the present case stood destroyed in the year 2004 and the appeal paper-book, therefore, does not contain all the terms and conditions of the insurance. It is, however, not in dispute that the terms and conditions of the policy are as contained in the India Motor Tariff effective from 1.12.1973. Both the learned Counsel are in agreement on this aspect and reliance has been placed by both of them upon the India Motor Tariff formulated by the Tariff Advisory Committee (TAC) set up u/s 64U of the Insurance Act, 1938. It is also not in dispute that the terms and conditions contained therein are binding on all the insurers effective from 1.12.1973. 18. A look at the India Motor Tariff shows that the first part of the Tariff sets out the territorial limits and makes the provisions of the Tariff applicable all over India. The next part consists of General Regulations, which, inter alia, provide that no Insurance Company is permitted to issue policies except in the Standard Forms provided in the Tariff. The Tariff then deals with private car tariff and motor cycle tariff. There is then a part relating to commercial vehicles tariff. Regulation 1 of the part concerning commercial vehicles tariff classifies the various kinds of commercial vehicles and runs thus: All vehicles not provided for under the private car or motor cycle tariff excluding vehicles running on rails. 19. The Tariff then deals with private car tariff and motor cycle tariff. There is then a part relating to commercial vehicles tariff. Regulation 1 of the part concerning commercial vehicles tariff classifies the various kinds of commercial vehicles and runs thus: All vehicles not provided for under the private car or motor cycle tariff excluding vehicles running on rails. 19. The learned Counsel for both the parties do not dispute that the insured vehicle in the instant case was a Goods Carrying Vehicle of the category of Class A(2) referred to above with a licensed carding capacity, of two tons. 20. Regulation 8 relating to "Commercial Vehicles Tariff" is relevant for the purpose of the present appeal, which is titled "Guide to completion of the Policy Schedules'. The relevant part of Regulation 8 which figures at Sheets 68-69 reads as follows: 21. At Sheet 77, the tariff rates relating to "Goods Carrying Vehicles - General Cartage" of the category of Class A(2) are set out, which reads as under: CLASS 'A(2)'. GOODS CARRYING VEHICLES-GENERAL CARTAGE. Vehicles used for the carriage of goods for hire or reward. Endorsement No. 26 must be used-see Regulation 4. 22. The next relevant sheet of the Commercial Vehicles Tariff is Sheet 120 which provides for additional premium payable under the head "Extra Benefits". The additional premium for Class A(2) vehicles is Rs. 39/- where the provision is for unlimited personal injury and upto Rs. 1,50,000/- property damage. The relevant portion of Sheet 120 is reproduced hereunder: 23. Towards the end of the Part relating to "Commercial Vehicles Tariff", the Standard Form for "Commercial Vehicles Comprehensive Policy" is set out (Sheet 138). Section I of the Standard Form deals with "Loss or damage". Section II deals with "Liability to Third Parties". Clause 1 thereof (without the proviso which is not relevant for this case) provides that subject to the limits of liability the company will indemnify the insured against all sums including claimant's costs and expenses. This clause reads thus: 1. Subject to the Limits of Liability the Company will indemnify the Insured against all sums including claimant's cost and expenses which the Insured shall become legally liable to pay in respect of- (i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle. Subject to the Limits of Liability the Company will indemnify the Insured against all sums including claimant's cost and expenses which the Insured shall become legally liable to pay in respect of- (i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle. (ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle. ............................................ 24. Section III of the Standard Form contains an avoidance clause captioned "AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY". This avoidance clause, which provides that any person indemnified by the policy or any other person can recover an amount under or by virtue of the provisions of Section 96 of the Motor Vehicles Act, is significant and reads as follows: AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY Nothing in this Policy or any endorsement hereon shall affect the right of any person indemnified by this Policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act 1939 Section 96. BUT the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the said provisions. 25. The aforesaid clause which is indisputably contained in the insurance policy in the instant case is heavily relied upon by the learned Counsel for the appellants and will be presently adverted to and dealt with at length. The aforesaid avoidance clause is followed by certain "General Exceptions" and "Conditions", including an arbitration clause. At the end is the "Schedule" attached to the "Standard Form". It may be mentioned at this stage that the Schedule to the insurance policy in the present case (Mark A) is issued in the same format as the "Schedule" to the "Standard Form", which is set out at Sheet 143 of the Tariff. 26. The aforesaid Schedule as contained in the India Motor Tariff when placed in juxtaposition with the Schedule to the policy in the present case conclusively shows that it is the identical, except for the amounts which have been filled in the Schedule to the policy in question. 26. The aforesaid Schedule as contained in the India Motor Tariff when placed in juxtaposition with the Schedule to the policy in the present case conclusively shows that it is the identical, except for the amounts which have been filled in the Schedule to the policy in question. The relevant portion of the Schedule with regard to the limits of liability alongwith the corresponding part of the Schedule to the policy in the present case are being reproduced hereunder to illustrate the point: 27. The Schedule in the Standard Form contains an "Important Notice", which refers to the avoidance clause and, reads as follows: IMPORTANT NOTICE The Insured is not indemnified if the Vehicle is used or driven otherwise than in accordance with this Schedule, Any, payment made by the Company by reason of wider terms appearing in the certificate in order to comply with the Motor Vehicles Act 1939 is recoverable from the Insured. See the Clause headed 'AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY'. 28. The Schedule in the present case (Mark "A") contains an identical "Important Notice". 29. The contention of Mr. V.P. Chaudhary, the learned Senior Counsel for the Insurance Company is that a bare glance at the "Schedule" to the insurance policy (Mark "A") would suffice to show that the liability of the Insurance Company under the insurance policy is a limited one. Mr. Chaudhary submitted that the alleged offending tempo was a goods carrying vehicle, which was insured with the respondent No. 2-Insurance Company under a Commercial Vehicles Policy (Comprehensive). Its licensed carrying capacity was two tons. The insured-estimated value of the vehicle was Rs. 72,000/-. The basic premium charged as reflected in the Schedule was Rs. 496/- and in addition thereto, as per the tariff; half percent of the insured estimated value, i.e., Rs. 360/- was also charged. A sum of Rs. 180/- was charged for covering the liability towards strike and riot and Rs. 40/- was charged fox legal liability of driver and cleaner. A ten percent special discount was given and the net premium paid by the insured thus worked out to Rs. 968/-. No additional premium was charged to cover extra benefits or wider liability than the liability provided in the Motor Vehicles Act. 40/- was charged fox legal liability of driver and cleaner. A ten percent special discount was given and the net premium paid by the insured thus worked out to Rs. 968/-. No additional premium was charged to cover extra benefits or wider liability than the liability provided in the Motor Vehicles Act. The learned Senior Counsel for the respondent No. 2 submitted that in order to make the liability of the Insurance Company unlimited for personal injury to a third party, an additional premium was required to be paid by, the insured, which, as per the India Motor Tariff, was at least Rs. 39/-. Since such additional amount was not paid, the liability of the Insurance Company was statutory in nature and as circumscribed by Section 95 of the Motor Vehicles Act, 1939, limited to Rs. 50,000/- only. 30. The learned Senior Counsel for the Insurance Company relied upon a large number of decisions in support of his contention that in order to fasten on the Insurance Company unlimited liability, it must be shown that extra premium was charged by the Insurance Company to cover a liability wider than that prescribed under the Motor Vehicles Act, 1939. 31. The first and foremost decision relied upon by the learned Counsel for the Insurance Company is the judgment of the Supreme Court in the case of Jugal Kishore (supra), paras 6 and 7 whereof are apposite and read as under: 6. We have accordingly perused the photostat copy of the policy to ascertain whether risk for any amount higher than the amount of Rs. 20,000/- contemplated by Clause (b) aforesaid was covered. Our attention was invited by learned Counsel for the respondents to the circumstance feat at the right hand corner on the top of page 1 of the policy the words 'COMMERCIAL VEHICLE COMPREHENSIVE' were printed. On this basis and on the basis that the premium paid was higher than the premium of an 'Act, Only' policy it was urged by the learned Counsel for the respondents that the liability of the appellant was unlimited and not confined to Rs. 20,000/- only. We find it difficult to accept this submission. Even though it is not permissible to use a vehicle unless it is covered at least under an 'Act Only' policy it is not obligatory for the owner of a vehicle to get it comprehensively insured. 20,000/- only. We find it difficult to accept this submission. Even though it is not permissible to use a vehicle unless it is covered at least under an 'Act Only' policy it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case; however, it is got comprehensively insured a higher premium, than for an 'Act Only' policy is payable depending on the estimated value of the vehicle. Such Insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf. 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 therefor. This is the requirement of the tariff Regulations framed for the purpose. Coming to the photostat copy of the policy in the instant case it would be seen that Section II thereof deals with liability to third parties. Sub-section (1) minus the proviso thereto reads as hereunder: 1. Subject to the Limits of Liability, the Company will indemnify the insured against all sums including claimant's, cost and expenses which the insured, shall become legally liable to pay in respect of- (i) death or bodily injury to any person caused by or arising out of the use (including the loading and or unloading) of the Motor Vehicle. (ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle. 7. (ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle. 7. A perusal of the policy, therefore, indicates that the liability undertaken with regard to the death or bodily injury to any person caused by pr arising out of the use (including the loading and or unloading) of the motor vehicle falling u/s II(1)(i) has been confined to 'such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939'. This liability, as is apparent from clause (b) of Sub-section (2) of Section 95 of the Act, was at the relevant time Rs. 20,000/- only. The details of the premium also indicate that no additional premium with regard to a case falling u/s II(1)(i) was paid by the owner of the vehicle to the insurance company. It is only the vehicle which was comprehensively insured, the insured's estimate of value including accessories (I.E.V.) thereof having been shown as Rs. 40,000/-. In this view of the matter the submission made by learned Counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability does not obviously have any substance. The liability under the policy in the instant case was the same is the statutory liability contemplated by clause (b) of Sub-section (2) of Section 95 of the Act, namely, Rs. 20,000/-. An award against the appellant could not, therefore, have been made in excess of the said statutory liability. 32. The learned Counsel for the Insurance Company also placed reliance on the Constitution Bench decision in New India Assurance Co. Ltd. Vs. C.M. Jaya and Others, The question which arose for consideration in CM. Jaya's case (supra) was as follows: The question involved in these appeals is whether in a case of insurance policy not taking any higher liability by accepting a higher premium, in case of payment of compensation to a third party, the insurer would be liable to the extent limited u/s 95(2) or the insurer would be liable to pay the en lire amount and he may ultimately recover from the insured. On this question, there appears to be some apparent conflict in the two three-Judge Bench decisions of this Court-(1) New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, (1995) 2 SCC 539 and (2) Amrit Lal Sood and Another Vs. On this question, there appears to be some apparent conflict in the two three-Judge Bench decisions of this Court-(1) New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, (1995) 2 SCC 539 and (2) Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, AIR 1998 SC 1433 . 33. Analyzing the aforesaid decisions as well as several other decisions, the Supreme Court held as follows: 5. Thus, a careful reading of these decisions clearly shows that the liability of the insurer is limited, as indicated in Section 95 of the Act, but it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability. This view has been consistently taken in the other decisions of this Court. 6. In New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, (1995) 2 SCC 539 a Bench of three learned Judges of this Court, following the case of National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, AIR 1988 SC 719 has held that (i) a comprehensive policy which has been issued on the basis of the estimated value of the vehicle does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutory limit; (ii) that even though it is not permissible to use a vehicle unless it is covered at least under an 'Act only' policy, it is not obligatory for the owner of the vehicle to get it comprehensively insured and (iii) that the limit of liability with regard to third party risk does not become unlimited or higher than the statutory liability in the absence of specific agreement to make the insurer's liability unlimited or higher than the statutory liability. 7. On a careful reading and analysis of the decision in Amrit Lal Sood, Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, AIR 1998 SC 1433 it is clear that the view taken by the Court is no different. In this decision also, the case of National Insurance Co. Ltd., New Delhi Vs. 7. On a careful reading and analysis of the decision in Amrit Lal Sood, Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, AIR 1998 SC 1433 it is clear that the view taken by the Court is no different. In this decision also, the case of National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, AIR 1988 SC 719 is referred to. It is held (i) that the liability of the insurer depends on the terms of the contract between the insured and the insurer contained in the policy; (ii) there is no prohibition for an insured from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby risk to the gratuitous passenger could also be covered; and (iii) in such cases where the policy is not merely statutory policy, the terms of the policy have to be considered to determine the liability of the insurer. Hence, the Court after noticing the relevant clauses in the policy, on facts found that u/s II(1)(a) of the policy, the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to 'any person'. The expression 'any person' would undoubtedly include an occupant of the car who is gratuitously travelling in it. Further, referring to the case of Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, (1977) 2 SCC 745 it was observed that the said decision was based upon the relevant clause in the insurance policy in that case which restricted the legal liability of the insurer to the statutory requirement u/s 95 of the Act. As such, that decision had no bearing on Amrit Lal Sood's case (supra) as the terms of the policy were wide enough to cover a gratuitous occupant of the vehicle. Thus, it is clear that the specific clause in the policy being wider, covering higher risk, made all the difference in Amrit Lal Sood's case as to unlimited or higher liability. The Court decided that case in the light of the specific clause contained in the policy. Thus, it is clear that the specific clause in the policy being wider, covering higher risk, made all the difference in Amrit Lal Sood's case as to unlimited or higher liability. The Court decided that case in the light of the specific clause contained in the policy. The said decision cannot be read as laying down that even though the liability of the insurance company is limited to the statutory requirement, an unlimited or higher liability can be imposed on it. The liability could be statutory or contractual. A statutory liability cannot be more than what is required 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 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 absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the statute or the contract of insurance which is not permissible. 8. In the light of what is stated above, we do not find any conflict on the question raised in the order of reference between the decisions of two Benches of three learned Judges in New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, (1995) 2 SCC 539 and Amrit Lal Sood, Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, AIR 1998 SC 1433 aforementioned and, on the other hand, there is consistency on the point that in case of an insurance policy not taking any higher liability by accepting a higher premium, the liability of the insurance company is neither unlimited nor higher than the statutory liability fixed u/s 95(2) of the Act. In Amrit Las Sood's case, the decision in Shanti Bai is not noticed. However, both these decisions refer to the case of Jugal Kishore and no contrary view is expressed. 9. In New India Assurance Company Ltd. Vs. Ram Lal and Others, (1988) ACJ 754 looking to the insurance policy that the appellant had undertaken to indemnify the insured to the extent of Rs. However, both these decisions refer to the case of Jugal Kishore and no contrary view is expressed. 9. In New India Assurance Company Ltd. Vs. Ram Lal and Others, (1988) ACJ 754 looking to the insurance policy that the appellant had undertaken to indemnify the insured to the extent of Rs. 50,000/- only, it was held that the High Court was in error in holding that the appellant was liable to pay the entire amount of compensation which was more than Rs. 50,000/- and that the liability of the appellant was limited to Rs. 50,000/-. 10. In a recent judgment in National Insurance Co. Ltd. Vs. Nathilal and Others, (1999) 1 SCC 552 this Court following the case of National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, AIR 1988 SC 719 aforementioned, held that in view of the fact that no extra premium was paid towards unlimited liability as could be seen from the policy produced, the liability of the insurance company was limited to Rs. 15,000/-. The Court set aside the award of the Tribunal and affirmed by the High Court. 11. In the premise, we hold that the view expressed by the Bench of three learned Judges in the case of New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, (1995) 2 SCC 539 is correct and answer the question set out in the order of reference in the beginning as under: In the case of insurance company not taking any higher liability by accepting a higher premium for payment of compensation to a third party the in surer would be liable to the extent limited u/s 95(2) of the Act and would not be liable to pay the entire amount. 34. On the facts of the case before the Supreme Court and from the admitted copy of the insurance policy produced before it, the Supreme Court concluded: It is also not the case 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 extracted above. In the light of the law stated above, it necessarily follows that the liability of the appellant is limited to Rs. 50,000/- as was rightly held by the Tribunal. In the light of the law stated above, it necessarily follows that the liability of the appellant is limited to Rs. 50,000/- as was rightly held by the Tribunal. The High Court committed an error in taking the contrary view that the liability of the appellant was unlimited merely on the ground that the insured had taken a comprehensive policy. In New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, (1995) 2 SCC 539 this Court has clearly expressed the opinion that a comprehensive policy issued on the basis of the estimated value of the vehicle does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutory limit in the absence of specific agreement and payment of separate premium to cover third party risk for an amount higher than the statutory limit. This position is accepted in Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, AIR 1998 SC 1433 as well though no reference is made to this case. As already stated above, in Amrit Lal Sood's case, the Court found an express term in the policy for covering wider risk and to meet the higher liability unlike in the case of Shanti Bai. Therefore the High Court was not right in holding that the liability of the appellant insurance company was unlimited merely on the ground that the vehicle in question, i.e., the truck, was covered by a comprehensive insurance policy. 13. In the circumstances, we hold that the liability of the appellant insurance company is limited to Rs. 50,000/-, as held by the Tribunal. 35. It deserves to be mentioned at this juncture that a Division Bench of the Delhi High Court in the case of A.C. Gupta and Another Vs. New India Assurance Co. Ltd. and Others, (2002) ACJ 312 prior to the decision in C.M. Jaya's case, and, relying upon the decisions of the Supreme Court in Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, (1977) 2 SCC 745 Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, AIR 1998 SC 1433 and National Insurance Co. Ltd. Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, (1977) 2 SCC 745 Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, AIR 1998 SC 1433 and National Insurance Co. Ltd. Vs. Nathilal and Others, (1999) 1 SCC 552 held that where no extra or special premium was paid creating unlimited third party liability of the insurer, the statutory provisions of the Act limiting the liability of the insurer to the amount indicated in the statutory provision will prevail. 36. In Veena Pruthi and Others v. Oriental Fire & Genl. Insurance Co. Ltd., LPA No. 30/1989 decided on 25th November, 2009, a Division Bench of this Court, affirming the judgment of the learned Single Judge, held that where the premium paid is the basic premium, the conclusion must follow that the liability of the Insurance Company has to be restricted to the statutory liability of Rs. 50,000/-, unless additional premium as per the table set out in the tariff is paid. 37. From the above, I have no hesitation in arriving at the conclusion that in order to fasten on the Insurance Company unlimited liability it must be shown that extra, premium was charged by the Insurance Company to cover, a liability wider than that prescribed by the Motor Vehicles Act, 1939. This, the insured, in the present case, has singularly failed to establish. The inevitable conclusion, therefore, is that the liability of the Insurance Company must be held to be a limited one in terms of Section 95 of the Act of 1939. 38. The ancillary question which arises for consideration is the question as to whether or not the Insurance Company, where the liability of the Insurance Company is limited under the policy, is liable to pay as compensation anything more than the amount of its restricted liability. The learned Senior Counsel for the Insurance Company in this context took me through a large number of judgments, including, the following: (i) Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, (1977) 2 SCC 745 (ii) British Indian General Insurance Co. Ltd., Bombay Vs. Maya Banerjee and Others, (1986) 3 SCC 518 (iii) National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, AIR 1988 SC 719 (iv) New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, (1995) 2 SCC 539 (v) National Insurance Co. Ltd. Vs. Ltd., Bombay Vs. Maya Banerjee and Others, (1986) 3 SCC 518 (iii) National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, AIR 1988 SC 719 (iv) New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, (1995) 2 SCC 539 (v) National Insurance Co. Ltd. Vs. Nathilal and Others, (1999) 1 SCC 552 (vi) New India Assurance Co. Ltd. Vs. C.M. Jaya and Others, (2002) 2 SCC 278 (vii) The Oriental Insurance Company Limited v. Shakuntla Garg and Others, Civil Appeal No. 104/2003 (arising out of SLP (C) No. 691/2002) decided by a Bench of 2 Judges of the Honble Supreme Court on 10.1.2003. (viii) Oriental Insurance Co. Ltd. Vs. Kunhirama Poduval, (2002) 2 ILR(Ker) 420 (ix) National Insurance Co. Ltd. Vs. Maya Rani Roy and Others, (2003) ACJ 1028 (x) National Insurance Co. Ltd. Vs. Keshav Bahadur and Others, (2004) 2 SCC 370 (xi) New India Assurance Company Ltd. Vs. Smt. Shashikalabai Nalhe and Others, (2008) 3 AllMR 136 (xii) Oriental Insurance Co. Ltd. Vs. Smt. Raj Kumari and Others, (2007) 11 SCR 1141. 39. The contention of the learned Counsel for the Insurance Company was that the common thread running through all the aforesaid decisions is that the insurer cannot be held liable to pay the entire amount of compensation where its liability under the policy is a statutory one referable to Section 95 of the Motor Vehicles Act, 1939. He argued that where there is no special contract between the. Insurance Company and the insured to cover unlimited liability vis-a-vis injury to third parties, the mere fact that the insurance policy is a comprehensive policy (or for that matter a public risk policy) will not help the claimants in any manner. The limit of liability with regard to third party risk does not automatically become unlimited or higher than the statutory liability and the insurance company cannot be called upon to pay the entire compensation. 40. The limit of liability with regard to third party risk does not automatically become unlimited or higher than the statutory liability and the insurance company cannot be called upon to pay the entire compensation. 40. The learned Counsel for the appellants, on the other hand, heavily relied upon Section 96 of the Motor Vehicles Act read with the avoidance clause contained in the insurance policy as well as the "Important Notice" at the end of the Schedule to the policy, to contend that even assuming the liability of the Insurance Company was a limited one, it was nevertheless called upon to pay the entire amount of compensation to the appellants, which it may subsequently recover from the insured. Reliance was placed by the learned Counsel for the appellants upon the judgments of the Supreme Court in the following cases: (i) New Asiatic Insurance Co. Ltd. Vs. Pessumal Dhanamal Aswani and Others, AIR 1964 SC 1736 (ii) Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, AIR 1998 SC 1433 (iii) Oriental Insurance Co. Ltd. Vs. Cheruvakkara Nafeessu & Others, (2000) 8 SCALE 412 (iv) New India Assurance Co. Ltd. Vs. Vimal Devi and Others, (2011) 3 TAC 17. 41. In the case of New Asiatic Insurance Co. Ltd. (supra), the Supreme Court, after referring to the avoidance clause and the "Important Notice" in the Schedule to the policy, which were both in identical terms as in the present case, held that the provisions of the Act do not affect the right of a third party to recover any amount if the contract between the Insurance Company and the insured provides for the Insurance Company undertaking such a liability to third parties. The clause such as the avoidance clause is effective only between the insured and the Insurance Company. The relevant portion of the judgment of the Supreme Court is as follows: (ACJ, P.565, paras 21 and 22) The Act contemplates the possibility of the policy of insurance undertaking liability to third parties providing such a contract between the insurer and the insured, that is, the person who effected the policy, as would make the company entitled to recover the whole or part of the amount it has paid to the third party from the insured. The insurer thus acts as security for the third party with respect to its realising damages for the injuries suffered, but vis-a-vis the insured, the company does not undertake that liability or undertake it to a limited extent. It is in view of such a possibility that various conditions are laid down in the policy. Such conditions, however, are effective only between the insured and the company, and have to be ignored when considering the liability of the company to third parties. This is mentioned prominently in the policy itself and is mentioned under the heading 'Avoidance of certain terms and rights of recovery', as well as in the form of 'an important notice' in the Schedule to the policy. The avoidance clause says that nothing in the policy or any endorsement thereon shall affect the right of any person indemnified by the policy or any other person to recover an amount under or by virtue of the provisions of the Act. It also provides that the insured will repay to the company all sums paid by it which the company would not have been liable to pay but for the said provisions of the Act. The 'Important Notice' mentions that any payment made by the company by reason of wider terms appearing in the certificate in order to comply with the Act is recoverable from the insured, and refers to the avoidance clause. Thus the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties, in view of the provisions of the Act. We are of opinion that once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties' right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy. We are of opinion that once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties' right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy. Considering this aspect of the terms of the policy, it is reasonable to conclude that proviso (a) of para 3 of Section II is a mere condition affecting the rights of the insured who effected the policy and the persons to whom the cover of the policy was extended by the company, and does not come in the way of third parties' claim against the company on account of its claim against a person specified in para 3 as one to whom cover of the policy was extended. 42. In Amrit Lal Sood's case (supra), the Supreme Court, placing reliance upon the case of New Asiatic Insurance Co. Ltd. (supra), reiterated that the avoidance clause is effective only between the insured and the Insurance Company and not a third party. In paragraph 14 of the Report, it observed thus: 14. The above clause does not enable the insurance company to resist or avoid the claim trade by the claimant. The clause will arise for consideration only in a dispute between the insurer and insured. The question whether under the said clause the insurer can claim repayment from the insured is left open. The circumstance that the owner of the vehicle did not file an appeal against the judgment of Single Judge of the High Court under the Letters Patent may also be relevant in the event of a claim by the insurance company against the insured for repayment of the amount. We are not concerned with that question here. 43. In Cheruvakkara Nafeessu's case (supra), again the question before the Supreme Court was: What is the extent of liability of an insurance company towards the third party as per Section 95(2)(b) of Motor Vehicles Act, 1939 (hereinafter called 'the Act'), and what are its rights in case of payment of an amount in excess of the limits of the liability under the insurance policy vis-a-vis the insured? 44. 44. On a consideration of the avoidance clause of the policy and Section II of the policy dealing with "Liability to Third Party", the Supreme Court observed: (ACJ, P.3) A conjoint reading of all the terms of the policy of insurance executed in this case indicate that the total extent of liability of the insurance company is Rs. 50,000/- but the company is liable to indemnify the insured against all sums including claimants costs and expenses which insured becomes liable to pay and nothing in the policy affects the right of any person indemnified by the policy or any other person to recover an amount under or by virtue of the provisions of Section 96 of the Act. However, the insured is liable to repay to the company all sums paid by the company which the company would not have been liable to pay but for the condition of liability relating to third party. 45. In a recent decision of the Supreme Court in New India Assurance Co. Ltd. v. Vimal Devi and Ors. (supra), where the Insurance Company filed an appeal before the Supreme Court aggrieved by the High Court order directing the Insurance Company to pay the entire compensation amount of Rs. 4,90,000/- along with interest to the claimants and then to recover the amount beyond its liability of Rs. 50,000/- from the owner of the vehicle involved in the case, the Supreme Court dealt with the matter as follows: 3. Mr. K.L. Nandwani, learned Counsel appearing for the insurance company, submitted that the liability of the Appellant being limited to Rs. 50,000/-, the High Court was in error in making such a direction. In respect of the submission, he relied upon a Constitution Bench decision of this Court in New India Assurance Co. Ltd. Vs. C.M. Jaya and Others, (2002) 2 SCC 278 . 4. Mr. M.R. Calla, learned Senior Counsel appearing for the Respondent, in his reply submitted that the reliance placed on the Constitution Bench decision was misplaced and the Appellant overlooked the finer point of distinction made in the decision in CM. Jaya. He submitted that in the case in hand, the High Court had noticed the Avoidance Clause in the policy which was in the following terms- AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY. Jaya. He submitted that in the case in hand, the High Court had noticed the Avoidance Clause in the policy which was in the following terms- AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY. Nothing in this Policy or any Endorsement hereon shall affect the right of any person indemnified by this policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicle Act, 1939, Section 96. But the Insured shall repay to the company all sums paid by the company which the company would not have been liable to pay but the said provisions. 5. The Avoidance Clause came up for consideration before a three Judges Bench of this Court in Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, AIR 1998 SC 1433 . In its decision in that case this Court observed: 13. In the policy in the present case also, there is a clause under the heading: AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY" which reads thus- Nothing in this policy or any endorsement hereon shall affect the right of any person indemnified by this policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act, 1939, Section 96. BUT the insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the said provisions. 14. The above clause does not enable the insurance company to resist or avoid the claim made by the claimant. The clause will arise for consideration only in a dispute between the insurer and the insured. The question whether under the said clause the insurer can claim repayment from the insured is left open. The circumstance that the owner of the vehicle did not file an appeal against the judgment of the Single Judge of the High Court under the letters patent may also be relevant in the event of a claim by the insurance company against the insured for repayment of the amount. We are not concerned with that question here. 15. In the result, we hold that the insurance company is also liable to meet the claim of the claimant and satisfy the award passed by the tribunal and modified by the High Court. We are not concerned with that question here. 15. In the result, we hold that the insurance company is also liable to meet the claim of the claimant and satisfy the award passed by the tribunal and modified by the High Court. The judgment of the High Court insofar as it exonerates the insurance company (5th Respondent herein) from the liability, is set aside. The award passed by the Division Bench of the High Court can be enforced against the 5th Respondent also. The appeal is allowed to the extent indicated above. The parties will bear their respective costs. 6. Mr. Calla further submitted that in C.M. Jaya and Ors. a Constitution Bench of this Court indeed held that in a policy for limited liability it was not open to the Court to direct: the insurance company to make any payment beyond the amount of the limited liability but it took note of the decision in Amrit Lal Sood with approval. He referred to paragraphs 10 and 16 of the judgment in CM. Jaya where the decision in Amrit Lal Sood is noticed with approval. 7. The Avoidance Clause in the policy in this case makes all the difference and the direction of the High Court to the Appellant, insurance company, to make payment of the full amount of compensation to the claimants and to recover its dues from the owner of the vehicle is directly in accordance with that clause. In our view, the submission of Mr. Calla is well founded. The Appellant in this case can derive no benefit from the decision in CM. Jaya. 8. We find no merit in these appeals. These are dismissed. 46. To counter the contention of the learned Counsel for the appellants with regard to the avoidance clause in the policy, the learned Senior Counsel for the Insurance Company, relied upon the decision of the Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Smt. Raj Kumari and Others, wherein it was held by the Supreme Court that the liability of the Insurance Company would be limited to the quantum which was to be indemnified in terms of the policy. Ltd. Vs. Smt. Raj Kumari and Others, wherein it was held by the Supreme Court that the liability of the Insurance Company would be limited to the quantum which was to be indemnified in terms of the policy. The Supreme Court in the said case then referred to the following observations made in Oriental Insurance Company Limited v. Shakuntla Garg and Others, Civil Appeal No. 104/2003 disposed of on 10.1.2003: Learned Counsel for the appellant at this stage expressed an apprehension that by virtue of the terms of the Award, the appellant may be required to pay the entire amount and recover it from the owner. In the light of the modification of the impugned Award, such question does not arise. It then went on to observe as under: It is true that in certain cases this Court has, after looking into the fact situation, directed the insurance company to make payment with liberty to recover' the amount in excess of the liability from the insured. Those decisions were given on the facts situation of the cases concerned. 47. Strong reliance was placed by the learned Senior Counsel for the Insurance Company on the aforesaid observations in the aforementioned case to urge that decisions relied upon by the appellants. Counsel were peculiar to the fact-situations of the cases in which the said decisions were rendered. 48. There is one other submission of the learned Senior Counsel for the Insurance Company which needs to be mentioned. It is his contention that in order that any provision of Section 96 may be invoked by the insurer for his benefit, the sine qua non is that it relates to the liability which is created by Section 95 of the Act. I am afraid it is not possible for me to agree with this interpretation sought to be placed upon the provisions of Section 96 of the Act, which is directly contrary to the law laid down by the Supreme Court in the case of Vimla Devi (supra). 49. I am afraid it is not possible for me to agree with this interpretation sought to be placed upon the provisions of Section 96 of the Act, which is directly contrary to the law laid down by the Supreme Court in the case of Vimla Devi (supra). 49. On a conspectus of the law laid down by the Supreme Court and on perusal of the Schedule to the insurance policy (Mark "A") and the Standard terms of the India Motor Tariff relied upon by both the parties, I am of the view that the only available conclusion in the present case is that even though the liability of the Insurance Company is limited qua the insured as claimed by it, the liability of the Insurance Company qua "any person" or a third party such as the appellants is not limited. The necessary corollary is that in accordance with the terms of the insurance policy, the appellants are entitled to recover from the Insurance Company the entire amount awarded by the Claims Tribunal as enhanced by this Court. 50. To conclude, the appellants are held entitled to an enhanced amount of compensation of Rs. 1,02,000/- with interest as awarded by the Tribunal. The Insurance Company is directed to pay the entire amount to the appellants after deducting the amount, if any, already paid. The Insurance Company shall be entitled to recover the amount paid by it in excess of its liability from the owner and driver of the vehicle in accordance with law. The appeal is allowed in the above terms. There shall be no order as to costs.