Sardar Jai Singh Chawala vs Raksakhi Devi and Others etc.

Navin Sinha, J.—These two appeals arise out of a common judgment and order

dated 10-9-1996 passed by a single Judge in Misc. Appeals Nos. 155 of 1995, 159 of 1995, 250 of 1995 and 265 of 1995. The former two

appeals have been dismissed while the latter two appeals have been only partly allowed.

Claim Case Nos. 23 of 1988 and 26 of 1988 disposed on 16-5-1995 by the 4th Additional Claims Tribunal, Vaishali at Hajipur gave rise to

the aforesaid Misc. Appeals. M. A. Nos. 155 and 159 of 1995 were filed by the owners of the vehicles in question. M. A. Nos. 250 of 1995 and

265 of 1995 were filed on behalf of the claimants seeking additional compensation.

The Claim Case Nos. 23 and 26 of 1988 arose out of an accident on 8-5-1988 leading to the demise of two Advocates, Dwarika Prasad and

Kamlesh Prasad assessed to be approximately 58 years and 30 years of age respectively. They were crushed to death by a bus bearing

registration No. BPP 8182 on the northern side of the Ganga Setu bridge while proceeding to Hajipur from Patna on a scooter.

Claim Case No. 23 of 1988 was filed by Ramsakhi Devi and Rajendra Prasad, the married sister and nephew (son of Ramsakhi Devi) of the

deceased Dwarika Prasad. Claim Case No. 26 of 1988 was filed by Shri Kamta Prasad, father of the deceased Kamlesh Kumar. The New India

Insurance Company Ltd. was a party respondent in the appeals, along with the vehicle owner.

The 4th Additional Claims Tribunal Vaishali at Hajipur framed four issues for consideration (i) whether or not the claim cases are maintainable,

(ii) whether or not the claimants have got cause of action and right to file the; case, (iii) whether or not the alleged accident took place on the

alleged date, time and place of occurrence by Deluxe Coach No. BPP 8182 due to rash and negligent driving in which both the deceased died

instantaneously, (iv) whether or hot the claimants are entitled to any compensation and if so to what amount.

The Tribunal held the claim cases maintainable. On issue No. (ii) the Tribunal accepted the submission that the claimants in 23 of 1988 were

dependent on the deceased Dwarika Prasad and therefore they had cause of action. Likewise deceased Kamlesh Kumar having died unmarried

Case No. 26 of 1988 was maintainable by his father. On issue No. (iii), on consideration of the documentary and ocular evidence the Tribunal

arrived at the finding that it was fully proved that the Bus in question BPP 8182 caused the accident on 8-5-1988, dashing against scooter ridden

by the deceased leading to their instantaneous death.

The New India Insurance Company with which the vehicle was insured appeared and also filed its written statement.

In the aforesaid facts and circumstances the Tribunal held that the heirs of deceased Dwarika Prasad after adjustment of ad interim

compensation were entitled to Rs. 2,1 l,000/- of which Rs. 50,000/- was to be paid by the Insurance Company as the Claim case was filed in

December, 1988 before the New Motor Vehicles Act came into force. The rest of the amount was to be paid by the owner of the bus. Interest @

10% pendente lite and future was also allowed. The Tribunal rejected the claim for Rs. 15,000/- for damage cost of the scooter holding that

evidence was not sufficient. The heirs of deceased Kamlesh Kumar was granted compensation of Rs. 75.000/- in addition to Rs. 25.000/- paid as

ad interim compensation. The Insurance Company like-wise was directed to contribute Rs. 50,000/ the rest to be paid by the owner of the bus.

Like interest as above was further directed to be paid. A composite simple money decree was therefore prepared dated 16-5- 1995, under Rule

248 of the Bihar Motor Vehicles Rules, 1992.

M. A. No. 250 of 1995 then came to be filed against denial of compensation for damage to the scooter of deceased Dwarika Prasad while

M.A. 265 of 1995 came to be filed for the enhancement of the compensation.

The owner of the vehicle after depositing the statutory amount as required under- Section 173 of the Motor Vehicles Act then preferred M. A.

Nos. 159 of 1995 and 155 of 1995 questioning the award of the Tribunal dated 16-5-1995. Both the appeals impleaded the New India Insurance

Company also as respondents in addition to the heirs of the claimants as noticed above. In Misc. Appeal 155 of 1995 arising out of Claim Case

No. 26 of 1998, the owner of the vehicle, the present appellant, pleaded that he was not interested in challenging the quantum of the award. The

eligibility of the claimants as relatives of the two deceased was also not questioned by the appellants, the issue thus attaining finality on the

''Award''. The appellant, in both the appeals however questioned the award of the Tribunal fixing the liability of the Insurance Company limited to

Rs. 50.000/- to each of the deceased. The contention was that the vehicle having been comprehensively insured for a sum of Rs. 2,00,000/-, the

liability of the Insurance Company was unlimited with regard to the deceased also. A suggestion was also made that in fact no accident had

occurred by the bus in question.

M. A. Nos 150 and 265 of 1995 questioned the Award only to the extent it rejected their claims.

The M. A. Nos. 155 of 1995 and 159 of 1995 was then admitted on 10-5-1996 and the respondents claimants were permitted to withdraw

Rs. 25.000/- deposited u/s 173 of the Motor Vehicles Act after furnishing security. This order would further record that further proceedings in the

Certificate Case (See Section 174 of the Motor Vehicles Act) were stayed.

The four appeals then came to be disposed by common order dated 10-9-1996 presently assailed in LPA Nos. 1153 and 1154 of 1996 by

the appellant vehicle owner. A: single Judge of this Court held that an accident had taken place on 8-5-1988 when the bus of the present appellant

dashed against the scooter on which the two deceased were travelling leading to their demise. There was thus a concurrent finding of the Tribunal

and of the First Appellate Court with regard to the factum of the accident. Before the single Judge the present appellant contended that the policy

taken by it from the Insurance Company was ''comprehensive'' in nature for a value of Rs. 2,00,000/-. Since the nature of the policy was

''comprehensive'' the Tribunal erred in not fastening the entire liability upon the Insurance Company with regard to the two deceased and wrongly

limited the same to Rs. 50.000/- only. In support of the plea, learned Counsel relied upon certain judgments as noticed by the single Judge placed

before him on behalf of the appellant. The submission was that the words comprehensive would mean third party plus damage to the vehicle.

Referring to the provisions of Section 95(2)(b) of the Motor Vehicles Act, 1939 it was sought to be contended that since the vehicle was

comprehensively insured, the Insurance Company would have to undertake unlimited liability towards the deceased also.

The Counsel for the Insurance Company, contesting the matter submitted that Rs. 2,00,000/- was the estimated value of the vehicle for which

the owner could lay claim for compensation. That there was no agreement between the Insurance Company and the owner of the vehicle to pay

higher compensation than the statutory amount mentioned in Section 95(2) of the Motor Vehicles Act, 1939. In absence of any such contract

between the Insurer and the insured accepting unlimited liability upon payment of additional premium, no unlimited liability could be imposed on the

Insurance Company merely for the reason of the nomenclature of the policy as ''comprehensive''. It was further contended that where a vehicle is

''comprehensively'' insured, a higher amount of premium is payable, than that for an ""act only"" policy depending upon the estimated insured value of

the vehicle. This would entitle the owner of the vehicle to claim reimbursement of the entire amount of loss or damage suffered up to the estimated

value of the vehicle. This however would not fix unlimited liability with, regard to third party risk beyond the statutory liability fixed under the Act

unless a specific agreement be arrived at between the owner and the insurance Company covering entire unlimited risk of the third party in excess

of statutory liability. This has to be clearly specified in the policy and separate premium must be paid.

Neither before the Tribunal nor before the single Judge either parties produced the Insurance Policy. No claim appears to have been made for

production of the policy. The position remained the same before the single Judge also. Only the first page of the policy was filed as Annexure 1 to

M.A. Nos. 155 and 159 of 1995. A bare perusal of the same would itself show that it was an incomplete document and referred to enclosures

Incorporating terms and conditions. No application was filed by the appellant to direct production of the policy as additional evidence before the

First Appellate Court also.

The single Judge on basis of the materials before him proceeded to hold that merely because the policy was ''comprehensively'' valued at Rs.

2,00,000/ it was difficult to hold that the Insurance Company was liable in excess of the statutory limit as awarded by the Tribunal. The single

Judge further held that there appeared to be no clause to pay any amount of compensation in excess of statutory liability, to a passenger or any

other person who met with the accident. Additionally no evidence or document had been produced to ascertain the terms of the Insurance

Contract between the parties. The single Judge thus proceeded to dismiss M. A. Nos. 155 and 159 of 1995 even while partly allowing M. A. 250

and 265 of 1995 by upsetting that part of the direction of the Tribunal rejecting the claim for damage to the scooter and directed payment of Rs.

6,000/- to the claimants towards compensation for damage caused to the scooter.

In the present appeal nope has appeared on behalf of the Insurance Company. The common order dated 18-1-2006 recorded in LPA 1153

of 1996 records that the earlier counsel of the Insurance Company informed the Court that he was no longer on the panel. Notices had been

issued earlier to respondent No. 3. Yet they would have made no alternative arrangement.

The Court has heard learned Counsel for the appellants and for the private respondents in the respective appeals and perused the materials on

record. Learned Counsel appearing for the appellants in both the appeals pressed the issue with regard to the eligibility of the claimants to maintain

the claim petition as they would not be statutorily entitled to do so not being the legal heirs or dependents of the deceased in terms of Section 166

of the Motor Vehicles Act. This Court would have noticed above that this issue was raised by the appellants before the Tribunal when it came to

be rejected by the Tribunal. The appellant did not challenge this part of the order in the Misc. Appeal No. 159 or 155 of 1995 preferred by it.

This finding of the Tribunal on facts thus attained finality. This Court in the present Letters Patent Appeal therefore does not permit the appellant to

assail a finding which attained finality inter parties due to his failure to challenge it before the first appellate Court.

Likewise the issue of fact of the accident occurring by the vehicle in question belonging to the appellant is also concluded by concurrent

findings of the Tribunal and the First Appellate Court. This Court as the third forum in appeal is not persuaded to interfere with such concurrent

finding of fact. In any event no such material has been placed before this Court to re-assess the issue even.

The only surviving issue that remains for determination is whether the award of the Tribunal as affirmed by the appellate Court is limited to the

statutory amount of Rs. 50.000/- or would it be unlimited for third party risk merely for the nomenclature ""comprehensive"" used with regard to the

policy. We have noticed above that neither was the policy produced before the Tribunal nor the First Appellate Court. A truncated copy of the

policy was produced as Annexure 1 before the First Appellate Court by the Appellant. A bare perusal of the same would disclose that it refers to

certain annexures which do not accompany it. Under Column B there is provision for-

Add for increased T.P. Limits

Section II 1(i) unlimited

Section II 1(ii) Rs....

Add for ....

It is note worthy that these columns dealing with T.P. (third party) are blank. The position that therefore emerges is that even as per the claim

of the appellants as per the truncated policy produced by it there was no separate premium paid with regard to third party liabilities making the

liability: of the Insurance Company unlimited. In absence of the same, quite naturally the liability of the Insurance Company would remain restricted

to the statutory liability as awarded by the Tribunal. The judgments cited before the single Judge would all arise out of an adjudication where the

policy original or carbon copy had been laid before the Court. The single Judge rightly relied upon the judgment of the Supreme Court in National

Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, by appropriately quoting para 6 of the same that for unlimited liability with regard to

third party risk a specific agreement followed by separate premium had to be undertaken by the Insurance Company in excess of the statutory

liability and that mere comprehensive policy would not automatically result in unlimited third party liability.

This issue of the matter as dealt with by the single Judge need not detain us any further in view of the authoritative pronouncement of the

Supreme Court reported in New India Assurance Co. Ltd. Vs. C.M. Jaya and Others, . Jaya by a Bench of five Judges approving and relying

upon the judgment in the National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, .

In the New India Assurance Co. Ltd. Vs. C.M. Jaya and Others, the deceased was riding pillion on a two wheeler when it met with an

accident with a truck insured by the appellant therein. The Tribunal upon claim awarded compensation and held that the liability of the Insurance

Company was limited to Rs. 50,000/- and the balance amount was recoverable from the driver and owner of the truck jointly and severly. On

appeal by the truck owner the High Court held that the liability of the appellant Insurance Company was unlimited as the vehicle was

comprehensively insured. The Apex Court considering the conspectus of law and judgment on this aspect of the matter held at paragraph 8 as

follows (at P. 654, Para 5 of AIR):

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.

Their Lordships then went on to hold at paragraph 10 that the liability of the Insurance Company could be statutory or contractual. Where the

liability be statutory and unlimited or higher liability cannot be imposed on it. A statutory liability would not be more than what was required under

the statute itself. The statute did not prohibit or prevent 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 to higher. If it is so done it amounts to rewriting the statute or the contract of Insurance which is not permissible"". The Apex Court

therefore set aside the order of the High Court directing the Insurance Company to pay the entire compensation amount beyond the statutory limit

merely for reason of the policy being comprehensive in nature. It has clearly been held therein that in a case of Insurance Company not taking any

higher liability by accepting a higher premium for payment of compensation to a third party the insurer would be liable to the extent limited u/s

95(2) of the Act and not be liable to pay the entire amount. 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 the third party risk for an amount higher than the statutory limit in the absence of any

specific agreement and the payment of additional premium to cover third party risk for an amount higher than the statutory limit.

In view of the authoritative pronouncement of the Supreme Court this Court has no hesitation in rejecting the submission on behalf of the

appellants that merely for the reason for the policy being comprehensive, the Insurance Company automatically acquired the unlimited liability for

third party risk. As has been noticed above the nature of the comprehensive policy has necessarily to be limited to the issue of damage to the

vehicle and not to third party risk. In any event, in the present case the original policy was never produced. The single Judge has also noticed the

absence of documents to sustain the claim of the appellants. The truncated documents produced by the appellants before the first appellate Court

is also of no help to them and on the contrary as noticed above would suggest to the contrary. This Court therefore finds no merit in these two

appeals. The same are accordingly dismissed.

As noticed by order dated 10-5-1996, in M. A. Nos. 155 and 159 of 1995 further proceedings In the Certificate Case initiated u/s 174 of the

Motor Vehicles Act had been stayed by this Court. We are unable to find any details of the case number etc. of the certificate case on record. We

therefore direct that the certificate case shall now proceed expeditiously on a day to day basis and the award amount be recovered from the

appellant without any further delay. If the certificate proceedings have not been initiated till now, we further direct that the Tribunal shall forthwith

initiate a certificate proceeding u/s 174 of the Motor Vehicles Act and proceed on a day to day basis. It is note worthy that the heirs of the

deceased would not have received any part of the compensation amount till today except the statutory amount deposited by the appellant u/s 173

of the. Motor Vehicles Act being Rs. 25.000/- only. The Tribunal had awarded interest on the Award @ 10%. The appellant has not questioned

the same. We only confirm the same till date of payment. If certificate proceedings have been initiated the certificate of demand shall be amended

accordingly.

Costs are awarded to the respondent heirs from stage of the Tribunal till the stage of the present appeal.

Both the appeals stand dismissed.

Aftab Alam, J.

I agree.