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2014 DIGILAW 461 (CAL)

Samir Basu v. Shri Ram Prosad Rajbhar

2014-05-15

INDIRA BANERJEE, SAHIDULLAH MUNSHI

body2014
JUDGMENT : Sahidullah Munshi, J. 1. Present appeal arises out of the judgment and award dated 17th June, 1989 passed by the learned Judge, Motor Accident Claims Tribunal at Calcutta, 10th Bench, City Civil Court, in MACC No.205 of 1981. The appeal has been filed by Shri Samir Basu and the New India Assurance Co. Ltd. respectively the owners of the offending vehicle No.WBS-2845 (a private bus) and the Insurance Company with which the offending vehicle was insured at the date of accident. 2. The claimant/respondent filed MACC Case No.205 of 1981 claiming a compensation amounting to Rs. 1,50,000/- (One Lakh Fifty Thousand) only out of which Rs. 60,000/- (Sixty Thousand) only was assessed for general damages and Rs. 90,000/- (Ninety Thousand) only for special damages stating, inter-alia, that:- (a) A private bus being No. WBS-2845, while proceeding along Kidderpore Road at a very high speed from north to south, dashed a tram without blowing horn and defying all applicable traffic rules, as a result of which the said bus overturned causing serious injuries to several persons including the claimant. (b) One Gita Banerjee, an injured in the said accident, succumbed to her injuries at SSKM Hospital. The accident took place on 26th August, 1981 at about 10.15 hours. The claimant claimed to be an employee (conductor) of the said offending vehicle (private bus) and sustained serious multiple injuries all over the body especially on head with a fracture at his left leg. According to the claimant, he was admitted at the SSKM Hospital and had to be there for a long time to recover from his injuries. (c) The accident took place due to rash and negligent driving of the driver of the offending bus. The driver was arrested vide Hastings PS MGR No.432 dated 26th August, 1981 and a case was initiated under Case No.273 dated 26th August, 1981 under Section 279/337/304A Indian Penal Code. 3. The claim application was registered before the Claims Tribunal on 30th October, 1981. Before the Claims Tribunal the owner of the offending vehicle, the appellant No.1 in his written statement alleged that the application was barred by the special law of limitation as prescribed under Section 110A(3) of the Motor Vehicles Act, 1939 and that the claim was excessive, mala-fide, and, therefore, the said owner denied liability to pay the compensation claimed. Before the Claims Tribunal the owner of the offending vehicle, the appellant No.1 in his written statement alleged that the application was barred by the special law of limitation as prescribed under Section 110A(3) of the Motor Vehicles Act, 1939 and that the claim was excessive, mala-fide, and, therefore, the said owner denied liability to pay the compensation claimed. It was further contended that it was not the bus but the tram was at fault for the accident. The Insurer alleged that claim under Column 22 of the claim application is mala fide, excessive and without any basis and the Insurer denied the liability to pay Rs. 1,50,000/- (One Lakh Fifty Thousand) only as claimed and it was further stated that if at all there is any liability to make payment of compensation by the Insurer, its liability is limited to the extent as provided for under Section 95(2)(b)(i) of the Motor Vehicles Act. It was further contended that the driver of the alleged offending bus was not rash or negligent while driving and, therefore, the said bus was not, in any way, responsible for the alleged accident rather the accident occurred due to the fault of the driver of the tram. It was further contended that it was entitled to the protection as are envisaged under the Motor Vehicles Act and the conditions and limitations laid down in the policy of insurance issued by the Insurer/appellant. 4. The Claims Tribunal, on the pleadings of the parties, framed two issues which are as follows:- "(i) Is the petition for claim maintainable in its present form and character? (ii) Is the claimant entitled to any compensation? If so, to what extent?" 5. The respondent/claimant Ram Prosad Rajbhar appeared as witness No.1 (PW1) and deposed in support of his claim application. In his deposition he has stated that he was a conductor of the offending bus which dashed against the tram and he had to be in the SSKM Hospital for 8 months for recovery from the serious injuries which caused him physically disabled and that he cannot work and even walk. He was earning Rs. 600/- to Rs. 650/- per month, he had to spend Rs. 11,000/- (Eleven Thousand) only for medical expenses. 6. He was earning Rs. 600/- to Rs. 650/- per month, he had to spend Rs. 11,000/- (Eleven Thousand) only for medical expenses. 6. In his cross-examination the PW1 stated that at the time of accident he was at the rear door of the said bus and that he had a licence as a bus conductor and that it was not a fact that he was not working under the owner of the bus at the relevant time. The claimant/respondent also produced two other eye witnesses who deposed as PW2 and PW3. PW2 in his cross-examination although stated "it was not a fact that the bus dashed against the tram car" but the PW3 stated "it was not a fact that the back portion of the bus got damaged and that the tram car dashed against the bus." 7. The Insurance Company did not produce any witness in support of their case or to controvert the case of the claimant/respondent. 8. On the pleadings of the parties and the evidence adduced by the witnesses for the claimant and after hearing the learned advocates for the claimant, Insurer and the owner of the offending bus, the learned Judge in the Claims Tribunal passed the impugned judgment and award on 17th June, 1989. After a threadbare discussion and after considering various reported judgments cited by the learned advocates for the respective parties, the Tribunal decided the issues and held that:- (a) The driver of the bus was guilty in causing the accident because he was rash and negligent in driving the vehicle without observing the minimum traffic rules. (b) Although it was admitted by the Insurance Company that at the relevant time, the offending vehicle No.WBS-2845 was insured with the New India Assurance Co. Ltd., appellant No.2, neither the said Insurance Company produced the said policy of insurance before the Tribunal for reasons best known to it nor the opposite party No.1/appellant Samir Basu, owner of the bus, produced any document in that respect. Ltd., appellant No.2, neither the said Insurance Company produced the said policy of insurance before the Tribunal for reasons best known to it nor the opposite party No.1/appellant Samir Basu, owner of the bus, produced any document in that respect. (c) Having regard to the deposition of the PW1 corroborated by evidence of PW2 and PW3, despite the claimant having not produced any document in support of his medical expenses and not producing the doctor who treated him as witness and having regard to the fact that no question was laid before the PWs by the Insurer, the Court had no other way but to believe that the injury, pleaded by the claimant, could not be falsified. 9. Although no document could be produced by the claimant save and except a Photostat copy of the discharge certificate (not admitted into evidence) could not be taken to be a ground of variance in pleading and evidence as the question was settled by judicial pronouncement which was evident from a reported judgment being 1983 ACJ page 533 which was cited on behalf of the claimant which led the Tribunal to draw a conclusion that strict rules of pleadings cannot be invoked in claim petitions. 10. In view of the finding arrived at as aforesaid, the Claims Tribunal directed payment of a sum of Rs. 10,000/- (Ten Thousand) only towards medical expenses and a sum of Rs. 90,000/- (Ninety Thousand) only as compensation by way of pecuniary loss. The Tribunal, accordingly, passed an award for a sum of Rs. 1,00,000/- (One Lakh) only as compensation together with interest @ 12% per annum on the said amount from the date of the presentation of the application i.e., 30th October, 1981 till the date of payment of the compensation. 11. In support of the present appeal, the learned Counsel appearing for the appellant submits that in view of the provisions of Section 95(2)(b)(i) of the Motor Vehicles Act, 1939, the Insurers liability is limited to the extent of Rs. 50,000/- (Fifty Thousand) only irrespective of the injury suffered by the claimant. 12. In course of hearing on 3rd March, 2014 it was revealed that nobody produced the insurance policy. 50,000/- (Fifty Thousand) only irrespective of the injury suffered by the claimant. 12. In course of hearing on 3rd March, 2014 it was revealed that nobody produced the insurance policy. The Insurance Company also did not take steps to produce the policy before this Court as well although the Insurance Company, the second appellant, in filing the appeal, contended that its liability was limited to the extent mentioned in Section 95(2)(b)(i) of the Motor Vehicles Act, 1939. By Order dated 3rd March, 2014, however, the Insurance Company was given a fortnight time to produce the insurance policy with all related papers in proof of its case that its liability was the one limited by Section 95(2)(b)(i) of the Motor Vehicles Act, 1939. 13. The matter was taken up on 24th March, 2014 in pursuance of Courts earlier direction and on that day when perusing the certificate of disability which was relied upon before the Motor Accident Claims Tribunal, this Court found that the said disability certificate was issued not by any Govt. recognised hospital or of any orthopaedic surgeon. On a perusal of the said certificate it was revealed that the disability was certified to be to the extent of 90% which appeared to this Court doubtful looking at the state of claimant who was personally present in Court. This Court deemed it appropriate to direct the Superintendent, SSKM Hospital to constitute a Medical Board for examination of the claimant and to forward a report at an early date. After the said report has been received by this Court the appeal was taken up for final hearing. The matter, however, came up before this Court again for hearing and the parties made their submission at length but neither the appellants have produced the insurance policy to show that its liability is limited within the meaning of Section 95(2)(b)(i) nor the respondent/claimant has taken any steps by producing any document to show that a third party was covered under the insurance policy so as to support the award which was passed by the Claims Tribunal in excess of the limited liability of Rs. 50,000/- (Fifty Thousand) only as mentioned under Section 95(2)(b)(i). 14. Mr. Das, appearing for the second appellant, has drawn our attention to the provisions of Section 95 of the Motor Vehicles Act, 1939 which is set out below: "Section 95. 50,000/- (Fifty Thousand) only as mentioned under Section 95(2)(b)(i). 14. Mr. Das, appearing for the second appellant, has drawn our attention to the provisions of Section 95 of the Motor Vehicles Act, 1939 which is set out below: "Section 95. Requirements of policies and limits of liability - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which - (a) is issued by a person who is an authorised insurer (or by a cooperative society allowed under Section 108 to transact the business of an insurer); (b) insures the person or classes of persons specified in the policy to the extent specified in sub-Section (2) :- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place : Provided that a policy shall not be required - (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment [other than a liability arising under the Workmens Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to any such employee - (a) engaged in driving the vehicle, or if it is a public vehicle, engaged as a conductor of the vehicle or in examining tickets in the vehicle , or (b) if it is a goods vehicle, being carried in the vehicle], or (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or (iii) to cover any contractual liability. [Explanation - For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which has damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.] (2) Subject to the proviso to Sub-Section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:- (a) where the vehicle is a goods vehicle, a limit of (one lakh fifty thousand rupees) in all, including the liabilities, if any, arising under the Workmens Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle; (b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment:- (i) in respect of persons other than passengers are carried for hire or reward, limit of fifty thousand rupees in all; (ii) in respect of passengers, a limit fifteen thousand rupees for each individual passenger; (c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred; (d) irrespective of the class of the vehicle, a limit of rupees [six thousand] in all in respect of damage to any property of a third party.] (4) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any conditions subject to which the policy is issued and of any other prescribed matters and different forms, particulars and matters may be prescribed in different cases. (4A) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons." 15. Mr. Das submits that according to the provisions of Section 95(2)(b)(i) the liability of the Insurer is limited to Rs. 50,000/- (Fifty Thousand) only in all. In support of such plea Mr. Das relies on a judgment of the Hon’ble Apex Court in the case of New India Assurance Co. Ltd. v. C.M. Jaya & Ors. reported in 2002 (3) TAC 434 (SC). The judgment was delivered by a 3-Judges Bench of the Hon’ble Apex Court and dealt with various questions including the question of liability of the Insurer for making payment of compensation to a third party to the extent limited under Section 95(2)(b)(i). Mr. Das, has relied upon paragraphs 6, 14, 15, 16 and 17 of the said report. In the aforesaid decision the Hon’ble Apex Court has held in paragraph 10 "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 and 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 re-writing the Statute or the contract of insurance which is not permissible." 16. 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 re-writing the Statute or the contract of insurance which is not permissible." 16. The Hon’ble Apex Court further says "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 Shanti bai and Amrit Lal Sood 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 under Section 95(2) of the Act. 17. On a careful consideration of the provisions of Section 95(2) and the law laid down in the aforementioned judgment in the case of New India Assurance Co. Ltd. v. C.M. Jaya & Ors. (supra) and taking into consideration that the claimant had not pleaded anything before the Claims Tribunal, we are constrained to hold that the Tribunal has committed a grave error in arriving at a finding to award a sum higher than that has been prescribed under the provisions of Section 95(2)(b)(i) of Motor Vehicles Act, 1939. Therefore, the said award passed by the Claims Tribunal cannot be sustained. 18. As per our earlier Order dated 24th March, 2014 SSKM Hospital has since forwarded a report, we took the same on record. The said report reveals that the physical disability of the claimant/respondent appears to be only 35%. In the said report the Medical Board opined, "on examination of Mr. Ram Prosad Rajbhar following findings are noted:- 19. That Mr. Ram Prosad Rajbhar, the claimant herein, can stand and walk without discomfort, squat, sit cross-legged and that total disability is only 35%." 20. Having regard to such position we cannot but hold that the petitioner is not entitled to any further sum towards compensation on the ground of disability as the learned Court below has wrongly assessed. 21. Mr. Banik, learned advocate appearing for the respondent/claimant, has relied on a judgment in the case of National Insurance Co. Ltd. v. Jugal Kishore & Ors. 21. Mr. Banik, learned advocate appearing for the respondent/claimant, has relied on a judgment in the case of National Insurance Co. Ltd. v. Jugal Kishore & Ors. reported in 1988 ACJ 270 to draw our attention to the observation made by the Hon’ble Apex Court that the Insurance Company has a greater duty being an instrumentality of the State to produce the policy or a copy thereof in order to render proper assistance to the Court to do justice between the parties. Mr. Banik has also relied upon an unreported judgment passed in FMA 714 of 2005 whereby this Hon’ble Court also observed in the same line and expressed its disinclination to interfere with a judgment and award and it would not be in a position to come to a positive conclusion that the appellant Insurance Companys liability would not have exceeded Rs. 15,000/- (Fifteen Thousand) only in absence of the entire insurance policy on record. By producing the aforesaid two judgments the claimant/respondent argued that whenever the question of limited liability will arise the Insurance Company should produce the document of insurance. The Insurance Company would have produced the document had such steps were taken by the claimant/respondent as maintainable in law but the claimant/respondent did not file any application before the Court below making a specific plea that since the Insurer is the custodian of the insurance policy, direction should be issued upon the Insurer to produce relevant documents, but no such steps were taken by the claimant/respondent. Even the Claims Tribunal in order to satisfy itself could have issued a direction upon the Insurer to place the document. In such a situation, we hold that no negative presumption could be drawn against the Insurer in view of the aforesaid two judgments cited before us, when it is apparent on the face of the record that the respondent/claimant has failed to discharge its initial onus. 22. Mr. Banik has also relied on a judgment in the case of Santosh Devi v. National Insurance Co. & Ors. reported in 2012 ACJ 1428 and referring to paragraph 14 thereof emphasised that there should be 30% increase over and above the award made by the Claims Tribunal. We are unable to hold that in the instant case, the said judgment has any bearing on us and, therefore, we do not accept the submission of Mr. & Ors. reported in 2012 ACJ 1428 and referring to paragraph 14 thereof emphasised that there should be 30% increase over and above the award made by the Claims Tribunal. We are unable to hold that in the instant case, the said judgment has any bearing on us and, therefore, we do not accept the submission of Mr. Banik so far he agitates for 30% increase in the award in question and in this regard it is important to point out that the award had not been challenged by the claimant/respondent. In the appeal of the Insurance Company against the award, we are not inclined to accept any such submission of the claimant/respondent regarding enhancement of the award when we have already held that the liability of the Insurer is a limited one. 23. Mr. Banik has also cited a decision in Reshma Kumari & Ors v. Madan Mohan & Anr. reported in 2013 ACJ 1253 and drawing our attention to paragraph 36 thereof submitted that the award may be enhanced even up to 50% in varied circumstances. 24. On a perusal of paragraph 36 it appears that the Hon’ble Apex Court refers to a salaried person who has got a permanent job but the said case does not match with the present one and, therefore, the said judgment has got no application in the present case. 25. Having regard to the submissions made by the respective parties and the judgments cited by them we hold that the liability of the Insurer is limited to Rs. 50,000/- (Fifty Thousand) only and such position has been approved by the judgment in the case of New India Assurance Co. Ltd. v. C.M. Jaya & Ors. and we, therefore, modify the award passed by the Tribunal as follows : (i) The petitioner would be entitled to the medical expenses as has been awarded by the Tribunal to the extent of Rs. 10,000/- (Ten Thousand) only. We are not disturbing the said part of the award. (ii) The claimant/respondent will be entitled to a compensation of Rs. 50,000/- (Fifty Thousand) only together with interest @ 12% per annum from the date of presentation of the claim application till liquidation thereof. 26. In this regard, we hold that the rate of interest given by the Tribunal is justified. In fact, in a case, namely, Smt. Niva Devi v. The New India Assurance Co. 50,000/- (Fifty Thousand) only together with interest @ 12% per annum from the date of presentation of the claim application till liquidation thereof. 26. In this regard, we hold that the rate of interest given by the Tribunal is justified. In fact, in a case, namely, Smt. Niva Devi v. The New India Assurance Co. Ltd. & Anr. (FMA No. 1346 of 2013) a Division Bench of this Court in which one of us (the Hon’ble Justice Sahidullah Munshi) was a party, held that award passed from 1985 to 2000, interest rate should be 12% per annum. 27. We, therefore, direct the Insurance Company, the Second appellant herein, to make payment of the balance sum to the claimant/respondent after making calculation of the interest or in the alternative to deposit the same in the Tribunal within a period of four weeks on receipt of a certified copy of this judgment. 28. This appeal is disposed of. Urgent Photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties, upon compliance of all requisite formalities. Appeal disposed of.