Oriental Insurance Company Limited vs Mohiuddin Kuresi @ Md. Moya and Others

Gurusharan Sharma, J.—Heard the parties and perused lower Court records. This appeal was preferred under the provisions of Motor Vehicles Act by the Insurance Company against judgment and award dated 31.1.1992 passed in Compensation Case No. 166 of 1989. On 4.9.1999 a bus (BHV-8546) knocked one Md. Sahid Kuresi causing multiple injuries to him, which resulted into his death on the spot. Parents of the deceased along with his widow and three miner sons filed a case for compensation under the aforesaid Act, Both owner as well as insurer of the bus . filed written statement but only the insurer contested the case. Insurer''s defence, inter alia, was that unless it was proved that bus was being plied in accordance with law and provisions of Motor Vehicles Act as well as the terms and conditions of insurance policy, insurer was not responsible to indemnify owner''s liability. Order dated 13.1.1992 of the compensation case shows that both sides filed documents. Claimants'' documents were marked Exts. 1 to 5 and document filed by Insurance Company was marked Ext. A. On perusal of the records. I find that a true copy (duplicate) of the insurance policy in question was brought on record on behalf of Insurance Company and was marked Ext. A on 13.1.1992.

It appears that inadvertently under a bona fide impression that insurance policy of the bus involved in the accident in question was not brought on record; as the owner of the vehicle after filing written statement did not contest the case, a petition Under Order 41 Rule 27 of the CPC was filed in the present appeal for admitting the insurance policy as additional evidence. This Court considered the said petition on 8.5.1999 when the appeal was being heard under Order 41 Rule 11 of the Code and rejected the same for the reasons recorded in the said order and the appeal was also dismissed.

The Insurance Company, in the instant appeal, had taken the main ground that notwithstanding that accident took place on 4.9.1989, i.e., after coming into force of Motor Vehicles Act, 1988, in terms of insurance policy it was liable to discharge only statutory liability of Rs. 50,000/- u/s 95(2)(b)(i) of the Motor Vehicles Act, 1939, under the impression that insurance policy itself was not brought on record, this Court without considering appellant''s claim u/s 95(2)(b)(i) dismissed the appeal.

As soon as it was detected that insurance policy was already brought on record in the compensation case and was also marked Exhibit, the Insurance Company filed Civil Review No. 52 of 1996, which was allowed on 18.4.2001 after hearing the Insurance Company as well as owner of the vehicle and part of order dated 8.51995, passed in this appeal, whereby the appeal was dismissed, was recalled and that is why the present appeal has again been put up Under Order 41 Rule 11 of the CPC and is being disposed of with consent of parties at this very stage. It was established before the Tribunal that accident took place on account of rash and negligent driving of the bus, whereby deceased, who was waiting for auto-rickshaw, was dashed and died on the spot. On the basis of the materials brought on record, Tribunal assessed annual dependency at Rs. 9,000/- and applied 16 multiplier and thereby calculated total amount of compensation at Rs. 1,44,000/- and also granted interest @ 12% per annum from the date of filing of the claim case till payment. I find no reason to interfere with the aforesaid amount of compensation granted by the Tribunal.

5, So far as insurer''s claim to indemnify owner''s liability to the extent of Rs. 50,000/- only is concerned, I find that insurance policy, Ext. A was effected for the period from 24.3.1989 to 23.3.1990. A perusal of the policy shows that a sum of Rs. 240/- was paid for covering liability to public risk and a sum of Rs. 624/- was paid for 52 passengers. No additional premium was paid for persons other than passengers. As such insurer''s liability cannot exceed to a sum of Rs. 50,000/- per annum defined as other than passengers, under the provisions of Section 95(2)(b)(i) of the Motor Vehicles Act, 1939. For the purpose of unlimited liability of insurer with regard to third party risk, a separate agreement and payment of separate premium is necessary. In absence of a specific agreement undertaking of a liability in excess of the statutory limit and payment of a separate premium therefor, the insurer''s liability will be confined to provide in the Act in respect of third parties risk. However, the present accident took place on 4.9.1989, when Motor Vehicles'' Act, 1988 had already come in force with effect from 1.7.1989 According to proviso to Sub-section (2) of Section 147 of 1988 Act, any policy of insurance issued with any limit and in force, immediately before commencement of 1988 Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. In the present case date of expiry of insurance policy, Ext. A, was 23.3.1990 and the accident took place on 4.9.1989, i.e. within four months from the date of commencement of 1988 Act, therefore, the insurer was entitled to claim protection of Section 95(2)(b)(i) of 1939 Act. Accordingly, I hold that appellant-Insurance Company is responsible to pay a sum of Rs. 50,000/- only with interest, out of total amount of compensation of Rs. 1,44,000/-, awarded by Tribunal and the balance amount of Rs. 94,000/- with interest is payable by respondent No. 7, owner of the bus.

With aforesaid modification in the impugned judgment and award, this appeal is disposed of.