National Insurance Company vs Mossamat Das Choudhary and Others

Prasun Kumar Deb, J.—Both these appeals have been heard analogously as they arise out of the same accident and the appellant-Insurance Company are the same in both the cases, although the claimants-respondents are different.

M.A. No. 473 of 1991 (R) has arisen out of Compensation Case No. 35 of . 1988, award of which had been passed by the 1st Additional District Judge-cum-MACT, Chaibasa, granting compensation to the tune of Rs. 50,000/- against the appellant-Insurance Company. Similarly M.A. No. 472 of 1991 (R) has arisen out of Compensation Case No. 36 of 1988 by the same Tribunal granting compensation to the tune of Rs. 50,000/- as lump-sum. It may be mentioned here that another claim case had also arisen out of the same accident being M.A. No. 471 of 1991 (R). The said compensation case was referred to Lok Adalat and on compromise being arrived at between the appellant and the respondents, the miscellaneous appeal was disposed of on grant of compensation to a total lump sum amount of Rs. 45,000/- minus Rs. 15,000/- which had already been deposited as an interim compensation.

On merit it is the contention of the appellant that the accident occurred during the subsistence of the Motor Vehicles Act, 1939 (the Old Act) and as per Section 95(2) of the Act, the insurer''s liability is to the extent of Rs. 15,000/- per passenger and such liability of the Insurance Company cannot be extended to a further amount. The Counsel for the appellant has referred to a judgment of the Bombay High Court in the case of United India Insurance Co. Ltd. Vs. Antonetta D''Souza and Others, etc. etc., which had also refer to the case of Motor Owners'' Insurance Company Limited Vs. Jadavji Keshavji Modi and Others, . In that case while interpreting "any one accident" as appearing in Section 95(2) of the Act, it was held that such accident should be construed from the side of the claimants and not from the side of the insurer and if there are several casualties in one accident then the limited liability u/s 95 of the Act would go in favour of each casualty and not apportionment to several casualties arising out of the same accident. The Bombay High Court in interpreting the same had held that the interpretation given by the Supreme Court was in respect of old version of Section 95(2) and by the new version the liability is limited to the Insurance Company, but what has been written in the Statute there should be apportionment. In this connection, Mr. Ram Kishore Prasad has further referred to a recent judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, , wherein it was held that if the policy condition and the statutory liability remain intact then the Tribunal has got no authority to overcome to grant more compensation in favour of the claimants. In the present cases, the judgment of the Supreme Court in National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, , is applicable as no insurance policy has been exhibited and by the New India Assurance Co. Ltd. (supra), the case of Jugal Kishore had not been distinguished.

However, without going into such controvertial points, these two miscellaneous appeals can be disposed of on the ground of disposal of M.A. No. 471 of 1991 (R) as referred to above which was disposed of in the Lok Adalat on the basis of compromise. It might be that there is some point in the submission of Mr. Ram Kishore Prasad, although I reserve my opinion with regard to the limited liability as enunciated by the Bombay High Court by referring to 1981 Supreme Court. I feel that without going for discrimination between the claimants arising out of the same accident, both these appeals are disposed of by minimising the award amount from Rs. 50,000/- to Rs. 45,000/- only, but in the present case, I do not want to substract/deduct Rs. 15,000/- which had already been paid, as an interim compensation as the matter has been lingered more than a year of disposal of the case in the Lok Adalat. By efflux of time, the claimants are definitely entitled to some more amount, as if the amount would have been kept in F.D.R. it would have fetched much interest.

In that view of the matter, both the miscellaneous appeals are disposed of in the light of agreeable position of the appellant-Insurance Company with the other claimants arising out of the same accident. Thus these appeals are disposed of by minimising the award amount to Rs. 45,000/- from Rs. 50,000/- towards lump-sum without any deduction of the earlier payment of Rs. 15,000/- towards interim compensation u/s 92A of the Act.