Piara Singh vs Kaushalya Devi Cera and Others

D.V. Sehgal, J.—This is an appeal by the owner of the vehicle against the award dated 5.8.1982 of the Motor Accidents Claims Tribunal. Ludhiana.

On 29.4.1981, Narshing Lal Cera, deceased. Branch Manager, Central Bank of India, Moga, along with one Ram Tirath of Moga was travelling from Moga to Ludhiana in taxi No. PNY 81 belonging to the Appellant, which was hired by Ram Tirath and was being driven by Ashok Kumar driver. As they reached near bus stand Sunet near the Milk Plant. Ludhiana the taxi hit against a cart coming from the opposite direction. It was being driven rashly and negligently by its driver. Due to the accident Narshing Lal Cera and the driver of the car received multiple injuries. They were removed to the Christian Medical College and Hospital. Ludhiana. The driver died about 8/9 hours later while Mr. Narshing Lal Cera died after about 22 hours at 1.40 p.m. on 30.4.1981. The claimant-Respondent Nos. 1 to 5 who are the widow, daughter, sons and the mother and who were all dependent on Narshing Lal Cera, filed the claim petition before the Tribunal. After full-dress trial, the Tribunal reached the conclusion that Respondent Nos. 1 to 5 were all dependent on the deceased and that Narshing Lal Cera died due to rash and negligent driving of the taxi of which the Appellant was the owner.

Taking into account the income of the deceased, dependency of Respondent Nos. 1 to 5 on him and the age of the deceased, the loss to them was assessed at Rs. 3,62,496/-. As regards the liability, the Tribunal decided that since the driver of the taxi had already died, the Appellant as its owner was liable to pay the whole amount. With regard to the liability of the insurance company, Respondent No. 6, it concluded that the same was limited to the extent of Rs. 10,000/- as per the provisions of the insurance policy.

The only argument of the learned Counsel for the Appellant is that the liability of Respondent No. 6 was unlimited and as such it should have been made to pay the entire amount of damage, viz., Rs. 3,62,496/-. The learned Counsel submitted that in the written statement, Respondent No. 6 has nowhere averred that its liability was limited and in the absence of such an averment Respondent No. 6 was liable for the payment of the whole amount of damages. In support of this submission, the learned Counsel relied on Bomanji Rustomji Ginwala v. Ibrahim Vali Master 1982 ACJ 380 (Gujarat). This contention is, however, without substance. A reference to the written statement of Respondent No. 6 makes it clear that in para 12 thereof it was specifically pleaded that its maximum liability per passenger was Rs. 10,000/-.

The second submission of the learned Counsel for the Appellant is that in the insurance policy Exh. RW 1/1, in the column of "Limits of liability" there is no limit prescribed as regards the liability in case of death of a passenger. This is again not correct. In the column of "Limits of liability" against the words limit of the amount of the company''s liability u/s II-1(i) it is mentioned, "Such amount as is necessary to meet the requirement of the Motor Vehicles Act, 1939". It makes the reference to the provisions of Section 95 of the said Act necessary. Sub-sections (2)(b)(ii)(1) and (4) of Section 95 provide that a policy of insurance shall cover any liability incurred in respect of any one accident up to a limit of Rs. 50,000/- in all where the vehicle is registered to carry not more than 30 passengers and subject to the limit of aforesaid, Rs. 10,000/- for each individual passenger where the vehicle is a motor cab. In view of the stipulation in the policy and the aforesaid provision of law, the support which the learned Counsel for the Appellant wants to derive from Shyam Lal and Others Vs. The New India Assurance Co. Ltd. and Another, is not available to him. The learned Counsel for Respondent No. 6, on the other hand, has placed reliance on a Full Bench judgment of this Court in Northern India Transporters'' Insurance Co. v. Amra Wati 1966 ACJ 13 (Punjab), which was affirmed by the Supreme Court in Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. 1971 ACJ 206 (SC). He has further relied on Prem Devi v. Harbhajan Singh 1984 ACJ 707 (P and H) and New India Assurance Company Ltd. Vs. Samundri Roadways Company (P) Ltd. and Others, to canvass that the stipulation for the limited liability in case of death of a passenger is in accordance with law.

The learned Counsel for the Appellant have invited my attention to Endorsement No. 13 forming part of the copy of the policy Exh. RW 1/1 which is at page 46 of the record of the Tribunal and contends that all the columns in this endorsement are left blank and as such the liability of Respondent No. 6 is unlimited. I am afraid, this contention is of no help to him, firstly, for the reasons that the original policy of insurance, which is supposed to be in possession of the Appellant himself, has not been produced on the record and has in fact been withheld for the reasons best known to him and secondly, a perusal of Endorsement No. 13 shows that it is meant to override the stipulation contained in Section II-1(c) of the policy which absolves the the occurrence of the event out of which any insurance company from the liability in respect of death of or bodily injury to any person other than a passenger carried by reason of or in pursuance of a contract of employment being carried in or upon or mounting or alighting from the motor vehicle at the time of claim arises. Thus, no benefit out of this clause can be taken by the Appellant. I, therefore, find no merit in this appeal, which is dismissed with costs.