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Judgment
Reva Khetrapal, J.
1.The short question which arises for decision in the present appeal is whether the liability of the Appellant-Insurance Company was limited to the extent of Rs. 50,000/- only or it was unlimited third party liability as held by the learned Motor Accidents Claims Tribunal by its judgment and award dated 10th June, 1994.
The Appellant-Insurance Company was the Respondent No. 3 in the Claim Petition filed under Sections 110A and 92A of the Motor Vehicles Act, 1939 by the legal representatives of the deceased Ramesh Kumar Khanna, who died as a result of a road accident, which took place on 10.03.1986. In the written statement filed by the Appellant, it was asserted that its liability was limited to Rs. 50,000/- as the policy issued by it insuring the offending vehicle, being a taxi bearing No. CHZ 1, was an ''Act Only Policy''. In order to substantiate its aforesaid assertion, the Appellant-Insurance Company adduced the evidence of its Branch Manager RW1 Shri M.S. Bindra, who proved the original policy of insurance produced by the Respondent No. 3 as Ex.RW1/1. RW1, in his testimony, testified that no extra premium had been charged and that Rs. 180/- was charged from the insured to cover third party risk to meet the requirements of Section 95 of the Motor Vehicles Act, 1939. In the policy Ex.RW1/1, which was proved in evidence by RW1 Shri Bindra, the limit of the amount of the Company''s liability for damage to property was stated to be Rs. 1,50,000/-. The learned Tribunal taking note of this fact held that the liability of the Insurance Company with regard to physical injury to third party was, therefore, unlimited. This conclusion was arrived at by the learned Tribunal on the basis of an excerpt of the ''Tariff'' produced by the Insurance Company, which is reproduced hereinbelow:
ADDITIONAL PREMIUM IN RESPECT of THIRD
PARTY and INDEMNITY LIMITS.
Liability to the Public Risks:
The indemnity granted to the Insured may be increased in respect of the undernoted vehicles by payment of an additional premium on the following scale. In case where the limits or indemnity provided under the standard policy exceed Rs. 50,000/- such limits may be increased in accordance with the scale at an additional premium equivalent to the difference between the scale rates for such standard policy limits and those for required increased limits.
Limits of liability
Scales of rates applicable to all commercial vehicles except (i) goods carrying vehicles �General Cartage Class A(2) & (ii) Motor Trade Road Riskonly Class E.
Scale of rates applicable to good scarrying vehicles General Cartage Class A(2)
Per vehicle
Per Trailer
Per vehicle
Per Trailer
Unlimited personal injury
50
25
100
50
Rs. 150000/- property damage
Unlimited personal injury Rs. 300000/- property damage.
75
35
150
60
Per unlimited personal injury and for every Additional Rs. 100000/- or part thereof, for property damage in excess of Rs. 3,00,000/-
Above rate plus Rs. 2.50
Above rate plus Rs. 5/-. NB. For vehicles designed as commercial vehicle and used for commercial and private purposes excluding use for hire or reward.
Note: The property damage limits in respect of vehicles rated under Class �E� may be increased in accordance with the above scale by charging 50 per cent of the above rates.
Whether unlimited personal injury is required to be covered under an "Act only" policy in respect of vehicles rated under Regulation 2 of the Commercial Vehicles Tariff and registered as such this may be granted by charging50% of the rates shown in the first item of Schedule for vehicles appearing at (a) above.
The learned Tribunal also noted that Shri Bindra did not produce the ''Tariff'' and the Insurance Company filed only the excerpt of the ''Tariff'' relating to additional premium in respect of third party indemnity liability which has been reproduced above. It held that in the absence of the ''Tariff'', it could not be said that Rs. 180/- charged by the Insurance Company was the basic premium to cover only statutory liability. According to the excerpt of the ''Tariff'' reproduced above, if the limit of liability with respect to damage to property is Rs. 1,50,000/-, the liability relating to physical injury, which includes death, is unlimited. In the policy Ex.RW1/1, which RW1 admitted to be the original policy, the limit of amount of Company''s liability for damage to property was set out as Rs. 1,50,000/-. It, therefore, followed that the liability of the Insurance Company with regard to physical injury to third parties was unlimited.
Before the Tribunal, it was contended on behalf of the Insurance Company that Shri Bindra (RW1), in his crossexamination, had clearly stated that the limit of liability with regard to property damage was only Rs. 50,000/- as shown in the true copy of the policy (Mark ''Z'') and that by mistake in the original policy the figure of Rs. 1,50,000/- was typed against the column "Limits of amount of Company''s liability u/s II-1(ii)". The learned Tribunal rejected the aforesaid contention of the Learned Counsel for the Insurance Company that the correct figure of the limit of liability of Insurance Company was Rs. 50,000/- as stated by Shri Bindra in his cross-examination and it was due to a typing error that in the original policy, Ex.RW1/1 the amount was mentioned as Rs. 1,50,000/-, on the ground that RW1 Shri Bindra in the same breath admitted that the copy of the policy Mark ''Z'', in which the amount was mentioned as Rs. 50,000/-, was not prepared alongwith the original policy Ex.RW1/1. The Tribunal noted that copy of the policy Mark ''Z'' was prepared later on, and the doubt expressed by the Learned Counsel for the claimants/Respondent Nos. 1 and 2 that the amount of Rs. 50,000/- was recorded in the copy to escape unlimited liability, could not be said to be baseless. The Tribunal accordingly held that the liability of the Insurance Company qua third party was unlimited and the Insurance Company was, therefore, liable to pay the entire amount of compensation to the claimants/Respondents No. 1 and 2.
Mr. Pankaj Seth, the Learned Counsel for the Insurance Company, vehemently contended that the findings rendered by the learned Tribunal in respect of the insurance policy in question were altogether erroneous. He contended that the learned Tribunal had completely misread and misunderstood the contents of the original policy of insurance Ex.RW1/1, inasmuch as it was nowhere mentioned in the said policy that any additional premium was charged by the Appellant-Insurance Company for increasing the limits of liability in respect of personal injury beyond the statutory liability.
Mr. Vikram Nandrajog, the Learned Counsel for the claimants/ Respondents No. 1 and 2, on the other hand, contended that the findings rendered by the learned Tribunal with regard to the insurance policy Ex.RW1/1 were unassailable in view of the facts that firstly, the Insurance Company did not care to produce the ''Tariff'' and, therefore, it cannot be held that the premium of Rs. 180/- paid by the insured was basic premium to cover statutory liability; secondly, the liability of the Insurance Company with regard to property damage was shown as Rs. 1,50,000/- in the original policy Ex.RW1/1 which was in excess of the statutory liability, and which clearly showed that extra premium had been charged to cover third party risk beyond statutory limit; and lastly, the reliance placed by the Appellant- Insurance Company on the copy of the policy Mark ''Z'' was misplaced in view of the fact that the Tribunal had before it the original policy which was proved in evidence by the witness of the Insurance Company, RW1-Shri Bindra. The subsequent effort to show that the figure of Rs. 1,50,000/- in the copy of the policy Mark ''Z'' was a typing error could not be countenanced in view of the fact that RW1 Shri Bindra in the course of his cross-examination admitted that copy Mark ''Z'' in which the amount was mentioned as Rs. 50,000/- was not prepared along with the original policy Ex.RW1/1.
It may be mentioned at this juncture that the record of the learned Tribunal which was requisitioned by this Court was reported to have been destroyed and accordingly this Court did not have the advantage of perusing either the original policy Ex.RW1/1 or copy Mark ''Z''. Since, however, the essential facts are not in dispute, this Court has no difficulty in arriving at the conclusion that there is no infirmity in the findings rendered by the learned Tribunal for the reasons explained hereinbelow.
RW1 Shri M.S. Bindra, who appeared in the witness box to substantiate the assertion of the Appellant-Insurance Company that its liability was limited to the extent of Rs. 50,000/- only, failed to produce the ''Tariff''. The ''Tariff'' alone could have shown that no extra premium had been paid by the insured and its non-production must necessarily lead to adverse inference being drawn against the Insurance Company. This Court, nevertheless, perused the relevant part of the ''Tariff'' pertaining to Class B(2) passenger carrying vehicles, which is reproduced hereunder:
Class:B-(2): PASSENGER CARRYING VEHICLES FOR HIRE (EXCLUDING PASSENGER RISK)
(a) Taxis or Private Car Type Vehicles plying for public hire.
(b) Private Type Taxis let out on Private Hire direct from the Owner with or without meters and driven by the Owner or an employee of the Owner.
(c) Private Car type vehicles let out on Private Hire and driven by the Hirer or any driver with his permission.
(d) Private Car type vehicles owned by Hotels and hired by them to their guests.
Own Damage
Liability to the Public Risks
Act only Liability
Rs. 275 +
0.75% on
I.E.V.
Rs. 120
Rs. 100
From the aforesaid extract of the ''Tariff'', it is amply clear that Rs. 100/- was the premium for an ''Act Only Policy'' while in the instant case a sum of Rs. 180/- had been paid. Then again, the original policy Ex.RW1/1 shows that the limit of the amount of the Company''s liability for damage to property in the said policy was Rs. 1,50,000/-, and if this be so, it follows from the excerpt of the ''Tariff'' produced by the Appellant-Insurance Company itself before the learned Tribunal, which is reproduced in the order of the learned Tribunal, that the liability of the Insurance Company with regard to third party injury was unlimited. The subsequent explanation rendered by the Appellant - Insurance Company that the correct figure was Rs. 50,000/- and not Rs. 1,50,000/- sought to be proved by the production of true copy of the policy (Mark ''Z'') was rightly rejected by the learned Tribunal in view of the admission made by RW1 Shri Bindra, the witness of the Appellant-Insurance Company, that the copy of the policy Mark ''Z'' was not prepared contemporaneously along with the original policy Ex.RW1/1.
In view of the aforesaid, the appeal fails and is accordingly dismissed.
There will be no order as to costs.