Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 859 (ALL)

O. F. I. LTD. v. KELA DEVI

2017-03-27

K.J.THAKER

body2017
JUDGMENT : Hon'ble Dr. Kaushal Jayendra Thaker, J. 1. By way of this appeal, the appellant challenges the award passed by Shri K.K. Singh, IInd Additional District Judge/Motor Accidents Claims Tribunal, Etah (hereinafter to as 'Tribunal') in case No.4 of 1987 (Smt. Kela Devi and Others Vs. Jahoor Ali and Others). 2. The deceased succumbed to the death while traveling in bus No. UPT 4551 at about 12.30 p.m. on 15.7.1986 from Kasganj to Etah. The vehicle was driven rashly and negligently and after reaching near the bridge the driver applied the break in such a way that the deceased sustained serious injuries and died in the hospital. The deceased was a police official working in the Police Department of Uttar Pradesh and, therefore, for his death a sum of Rs. 4,07,400/- was claimed. The owner and the driver admitted the accident who submitted that it was an act of god and not rash and negligent driving on the part of driver. It is submitted that for avoiding collision with another vehicle, the driver tried to save the bus but it went and fell into the ditch. It is submitted that the claimed amount was over exaggerated as the claimants had already claimed before the Collector and, therefore, the Tribunal should stay the proceeding. It was also submitted that vehicle was not comprehensively insured and there was clause for limited liability. The Insurance Company contested the petition by filing its written statement and contended that petitioners had no right to sue and the petition was bad for waiver, acquiescence and collusion. It was barred by the statutory provisions of law, the bus was not insured with the Company and it was being driven in violation of the conditions of the Insurance Company. Without prejudice and without admitting the liability, the risk covered by the Company under Section 95 (2) of the Motor Vehicles Act, 1939 (hereinafter referred to as 'Act,1939'), was limited, the deceased was himself guilty and responsible for the alleged accident and that he was not earning Rs. 900/- per month and he was not traveling in the bus involved in the accident. 3. This Court has heard learned counsel for the appellant. In this appeal several grounds are raised, however, the main submission is regarding the liability of Insurance Company. 900/- per month and he was not traveling in the bus involved in the accident. 3. This Court has heard learned counsel for the appellant. In this appeal several grounds are raised, however, the main submission is regarding the liability of Insurance Company. It is submitted that the liability of the Insurance Company was limited to Rs.15,000 only as per the provisions of Section 95 (2) (b) (ii) read with Section 96 of the Act, 1939. Their liability was not absolute as per the statute and no amount could have been awarded to be paid by them under the Act, 1939. 4. It is submitted that the liability of the Insurance Company was limited to Rs.15,000 only as per the provisions of Section 95 (2) (b) (ii) read with Section 96 of the Act, 1939. Their liability was not absolute as per the statute and no amount could have been awarded to be paid by them under the Act, 1939. 4. Section 95 of Act, 1939 reads as follows; 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 co-operative society allowed under section 108 to transact the business of an insurer, and (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 3[other than a liability arising under the Workmen's 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 (b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) 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 front 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 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 is 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 and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's 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 carried for hire or reward, a limit of fifty thousand rupees in all; (ii) in respect of passengers, a limit of 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 a containing the prescribed particulars of any, conditions subject which the policy is issued and of any other prescribed matters 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 he 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 person, 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 person. 5. Learned counsel for the appellant company has submitted that the Tribunal has fallen in error in considering that there is special contract between the Company and the owner of the vehicle so as to cover unlimited liability and for that learned counsel placed reliance on New India Assurance Co. Ltd., Appellant Vs. Smt. Shanti Bai, and others, AIR 1995 Supreme Court 1113. This Court has considered the factual scenario also the facts go to show that the policy which covered the insurance was not for limited liability. The finding of fact by the learned Tribunal goes to show that the policy was issued under Chapter 1 of the Act and, therefore, authority or its representatives have to pay in accordance with clause (4) of Section 95 of the Act, 1939 and, therefore, the stand that it had limited liability under the Act, 1939 is also proved. This Court is fortified in its view by the judgment of the Apex Court in Guru Govekar v. Filomena F. Lobo, AIR 1988 SC 1332 and, therefore, the reliance placed on the decision of Shanta Bai (Supra) will not applicable to the facts in present case. The comprehensive policy was with certain added features also the premium paid goes to show that it was covering an unlimited liability. The learned counsel could not show that the finding of fact by the Tribunal is erroneous. 6. No other issues are pressed and, hence, they attain finality as being devoid of merits. 7. In that view of the matter, this appeal fails and is dismissed. The learned counsel could not show that the finding of fact by the Tribunal is erroneous. 6. No other issues are pressed and, hence, they attain finality as being devoid of merits. 7. In that view of the matter, this appeal fails and is dismissed. Interim relief, if any, shall automatically stands vacated and if the appellant has still not deposited the awarded amount the same be deposited with interest accrued till date as ordered by the Tribunal.