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Judgment
The present batch of appeals arises out of the orders passed by the learned Motor Accident Claims Tribunal, Sirohi which has been decided on
17.08.2002 in separate claim cases filed on behalf of the claimants being Motor Accident Claim Case No.1/2001(14/86), 2/2001(15/86), 3/2001(17/86)
and 4/2001(18/86).
During the course of hearing it has been informed by learned counsel that in S.B. Civil Misc. Appeal No.800/2002 that the respondent No.1 Smt. Tara
Devi has died, therefore, Smt. Tara Devi is deleted from the array of respondents.
Although the claim petitions mentioned above have been decided separately but they arise out of the same accident and has been decided on
17.08.2002, the facts necessary for adjudication of the present appeals required to be noted are that on 18.11.1985 a matador bearing registration
No.RPA No.902 started from Pali. The matador was being driven by its driver Bhanwar Lal, the respondent No.5. There were total 18
passengers travelling in the said Matador. In the morning of 20.11.1985 the said matador reached Mount Abu. In the evening when they were
returning back to Pali from Mount Abu the said Matador met with an accident as it capsized in the valley resulting into the death of four persons
namely Nirmal Kumar, Parasmal Bubkiya, Parasmal Khated, Master Nitin Kumar.Â
In these circumstances separate claim petitions were preferred before the learned Motor Accident Claims Tribunal, Sirohi to which replies were filed
and after framing of the issues the same were decided by the learned Motor Accident Claims Tribunal, Sirohi vide judgment dated 12.09.1991.Â
The order aforesaid was assailed before this Court by the Insurance Company i.e. Oriental Insurance Company Ltd. by way of filing S.B. Civil Misc.
Appeal No.382/91, S.B. Civil Misc. Appeal No.383/91, S.B. Civil Misc. Appeal No.384/91 and S.B. Civil Misc. Appeal No.385/91.Â
This Court vide order dated 19.07.1996 after hearing counsel for the appellant passed the following order:
“Both counsel for the parties agree that the Tribunal had though addressed itself on the question of payment of additional premium for unlimited
liability but there appears to be some confusion. Parties have failed to indicate clear evidence on this aspect of the matter. The quantum of
compensation to be awarded against Oriental Insurance Company depends squarely on the question whether the additional premium was paid by the
insured to the insurer? This question is to be determined on the basis of clear evidence. Parties agreed that the matter may be remanded for the
same.
In this result the award in question is set aside and it is directed that the Trial Court will frame an issue in this regard and permit the parties to lead
evidence on this question. With these directions the matter is remanded back to the Tribunal to adjudicate the matter afresh.â€
In pursuance of the order dated 19.07.1996, the question with respect to the payment of additional premium for unlimited liability was to be decided by
the Tribunal afresh for arriving at the conclusion that if the additional premium was paid then the insurance company was liable to pay the
compensation and to what extent.Â
On remand the matter was adjudicated by the Motor Accident Claims Tribunal, Sirohi by recording a finding of fact that the insurance company has
received a premium of Rs.260/towards ‘wider legal liability’ and, therefore, the compensation as computed in the order depending upon the
various factors mentioned therein was held liable to be paid vide order dated 17.08.2002 which is the order impugned.Â
While challenging the validity of the order dated 17.08.2002 learned counsel for the appellant has argued that the insurance company cannot be
fastened with the liability beyond the premium paid by the owner of the vehicle. He further submits that the appellant is under an obligation to
indemnify the risk which is covered as per the insurance cover note and, therefore, they are liable to pay the amount to the extent the risk of the
passengers is covered for the purpose a premium has been paid. He further submits that since an amount of Rs.12/- per passenger was taken in the
present case for covering the risk of passengers travelling in the insured vehicle. As the capacity of the Matador was taken to be 20 seater,
therefore, an amount of premium of Rs. 240/- was charged by the appellant. Thus, the learned Tribunal has wrongly come to the conclusion that
Rs.260/- are charged by the appellants towards the wider legal liability. He further submits that in view of Section 95 of the Motor Vehicles Act,
1939, the liability of the insurance company is only to the tune of Rs.15,000/- per passenger as prescribed by Section 95(2)(b)(ii) of the Motor Vehicles
Act, 1939.Â
On the other hand, learned counsel appearing for the respondents have vehemently opposed the submissions made by learned counsel for appellant
and submit that as per the insurance cover note, the amount which has been charged for covering the risk of passengers is rightly determined by the
learned Tribunal as Rs.260/- towards the wider legal liability and, therefore, their claim cannot be restricted to the payment of Rs.15,000/- only. They
further submit that as the learned Tribunal has taken into consideration the statement of AW-1 Devi Singh who has stated that Rs.260/- were charged
for the purpose of wider legal liability. Therefore, compensation has rightly been computed.
Learned counsel for the respondents further submit that the appellant insurance company failed to produce the original documents as well as the
receipts of the premium, therefore, an adverse inference has rightly been drawn against the insurance company. They further submit that the
learned Tribunal has rightly come to the conclusion that the claims of the claimants cannot be restricted to the payment of Rs.15,000/- in the light of
Section 95 of the Motor Vehicles Act, 1939.
I have considered the submissions made at the bar and gone through the order dated 17.08.2002 as well as relevant record of the case.
On a perusal of the insurance cover note, it is amply clear that on the left hand side the headings are mentioned and opposite to that the amount which
has been charged as premium is inscribed which is as under:-
Legal Liability to passengers    240.00/-
T.P.                                         240.00/-
Earthquake & Riot                   260.00/-
Wider Legal Liability               16.00/-(to driver and cleaner)
On a close look at the insurance cover note it is clear that an amount of Rs.240/- (Rs.12/- per passenger being 20 seater) has been charged to recover
the risk of the passengers travelling in the vehicle in question. Taking note of the columns mentioned in the left side and the amount inscribed in
front of them, it is very clear that only Rs.16/- has been charged towards the wider legal liability i.e. Rs.8/- each for the driver and cleaner.Â
I am of the view that since, the insurance cover note itself is very clear and no two opinions can be expressed on the same then holding the amount
received by the insurance company @ Rs.12/- per passenger to cover the risk in question cannot be doubted. Rs.12/- per passenger has been
charged in accordance with the norms fixed by the Indian Motor Tariff and according to the same since the matador was having the capacity of 20
passengers, therefore, an amount of Rs.240/- has rightly been reflected to cover the risk factor of the travellers in the offending vehicle.Â
The contention with respect to AW-1 Devi Singh’s statement is concerned, it is of very little importance since the documents itself reflects the
amount charged then if something has been said contrary to the documents by AW-1 Devi Singh although, he is an employee of the appellant
company is of no significance.Â
Therefore, in view of Section 95(2)(B)(ii) the insurance company is liable to pay fixed compensation of Rs.15,000/- per passenger in case of death in
the present case and their liability cannot be extended beyond the statutory limit fixed by the Act of 1939 itself.Â
In view of whatever stated above the order dated 17.08.2002 is modified to the extent that the insurance company will be liable to pay an amount of
Rs.15,000/- per death claim only and for rest of the amount the claimants will be free to recover it from the other respondents namely the driver and
the owner.Â
At the same time, the appellants shall also be free to recover the amount which is paid over and above Rs.15,000/- from the owner of the vehicle in
accordance with law.