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Judgment
Yatindra Singh, J.—One Shri Hardutt Singh was travelling on tempo No. MKH 725 on 12.3.1988. At about 2 p.m. another tempo No. UTM 9594 came from behind and hit tempo No. MKH 725. In this accident Mr. Hardutt Singh died. Heirs of the deceased filed a claim petition. In this claim petition, they impleaded Mr. Habib Khan and Mr. Phoolan Singh, driver and owner of tempo No. UTM 9594. They also impleaded Siraj Ahmad and Vakil Uddin, driver/owner of temp No. MKH 725. Oriental Insurance Company is insurer of both.the vehicles and it was also impleaded.
The Tribunal below allowed the claim petition on 25.5.1998 for a sum of Rs. 3,50,000/-, hence the present appeal by the Insurance Company.
We have heard Mr. Parmatma Rai, Counsel for the appellant and Mr. Ajai Bhanot, Counsel for the respondents.
The Tribunal below after considering the evidence on record has come to a conclusion that tempo No. UTM 9594 had struck tempo No. MKH 725 from behind and this accident took place due to negligence of the driver of tempo No. UTM 9594. There is no challenge to this finding and this finding is upheld. In view of this finding, liability to pay the compensation would be of the driver and owner of tempo No. UTM 9594, namely Mr. Habib Khan and Phoolan Singh. The Oriental Insurance Company insurer of this tempo No. UTM 9594 and is liable to indemnify the owner of tempo No. UTM 9594 to the extent it is liable under the policy. It shows that the liability of the Insurance Company is only to the extent of Rs. 50,000/- and rest of the amount is to be given by the person who is liable to pay.
Mr. Ajai Bhanot, Counsel for the respondents makes the following submissions:
(i) appeal by the Insurance Company is not maintainable;
(ii) Insurance Company should pay the entire amount and thereafter it can recover the amount from the owner;
(iii) contact between the Insurance Company and owner of tempo restricts the limits of recovery and is against the public policy and void u/s 23 of the Contract Act.
The Insurance policy limits the liability of the Insurance Company, which reads as under:
Limits of liability-
Limit of the amount of the Company''s liability u/s II-1(i) in respect of only one accident; such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939. Limits of the amount of the company u/s II-1(ii) in respect of any one claim arising out of one accident Rs. 50,000/.
The appeal by Insurance Company is not on the quantum that it is required to pay under the policy as the appellant is no where disputing the liability to the extent of Rs. 50,000/-. They are disputing the liability of the Insurance Company beyond the terms of the policy. The appeal is maintainable.
The contract between the Insurance Company and the owner of the tempo is to pay the damages to the extent of Rs. 50,000/-. The Insurance Company is not liable to pay anything more. This contract is general contract which is in between Insurance Company and the public carrier. In view of this the Insurance Company cannot be liable to pay the entire amount.
The contract between the Insurance Company and tempo owner no where restricts the limit of the claim for damages. It merely restricts the liability of the Insurance Company to indemnify the owner of the vehicle. In view of this it cannot be said that this is against the public policy and void u/s 23 of the Contract Act.
In view of the above, the appeal is partly allowed. The claimants are entitled to a sum of Rs. 50,000/- (Rupees fifty thousand only) from the date of filing of the claim petition till the date of actual payment with interest at the rate of 9% per annum. So far as the remaining amount is concerned, the claimants will be entitled to recover it from Mr. Habib Khan and Mr. Phoolan Singh, driver and owner of tempo No. UTM 9594.