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Judgment
This appeal is filed by the Insurance Company to challenge the judgment and award dated 19-10-1993 in Motor Vehicles Case No. 547 of 1989 passed by the District Judge and Motor Accident Claims Tribunal, Karwar, Uttara Kannada (henceforth in brief as ''MACT''). In passing the same, the MACT had awarded a compensation of Rs. 1,15,000/- as against the claim of Rs. 3,00,000/- by the respondent 2-owner. The appeal is filed by the appellant-Insurance Company on the ground that its liability would have been restricted to Rs. 50,000/- in terms of the insurance policy.
I heard the learned Counsel for the appellant-Insurance Company, Sri Yoganarasimha. The respondent 1 is represented by Sri V.P. Kulkarni. The respondent 2 having been served with notice had remained absent. The respondent 3-claimant is represented by Sri B.S. Hadimani. I have also perused the case records.
The learned Counsel for the appellant-Insurance Company, Sri Yoganarasimha while taking me through the facts of the case and impugned judgment and award under challenge argued that the MACT would not have fastened the liability beyond the statutory limit of Rs. 50,000/-. In this regard, he had taken me through the provision of law in Section 95(2)(b)(i) of the Motor Vehicles Act and further the limit of liability as set out in Ex. R-1-Insurance Policy. It is therefore his submission that the MACT had erred in fastening the liability beyond the statutory limit in passing the impugned judgment and award and therefore he prayed that the same be modified to restrict the liability of Rs. 50,000/-.
The learned Counsel for the respondent 1-driver, Sri V.P. Kulkarni argued that the appellant-Insurance Company in filing the objection statement before the MACT had stated that the limit of liability of the appellant-Insurance Company was not to an extent of Rs. 3,00,000/- as it had been claimed by the respondent 3-claimant. Therefore, according to Sri Kulkarni, Ex. R-1-Insurance Policy would not have come to the aid of the Insurance Company. He had also drawn my attention to para 7 of the objection statement filed by the appellant-Insurance Company before the MACT. It is also his submission that the column meant to be filled with regard to the increased transfer of property limits u/s II-1(i) unlimited and u/s II-1(ii) in Schedule of Premium in page 1 of Ex. R-1-Insurance Policy is left blank and that being the position, according to him, it is not available for the Insurance Company to say that its liability is limited to Rs. 50,000/-. He had also cited before me a reported decision of the High Court of Judicature at Patna in Oriental Insurance Co. Ltd. Vs. Dulari Devi , wherein in a case where the Insurance Company had failed to produce either the original insurance policy or carbon copy thereof, the learned Single Judge of that Court held that adverse inference has to be drawn against the Insurance Company and that therefore the liability cannot be limited to the extent of minimum statutory liability of Rs. 15,000/-. He had also cited before me yet another decision in 1986 ACJ 890 (Kar.), wherein the Division Bench of this Court held that when column in the Insurance Policy is left blank as to its liability, the Insurance Company is liable to pay full amount. Therefore, he prayed that there is no merit in the instant appeal filed by the Insurance Company and therefore the same is liable to be dismissed.
The learned Counsel for the respondent 3, Sri B.S. Hadimani while supporting the impugned judgment and award passed by the MACT submitted that it is too late for the Insurance Company to argue before this Court in the instant appeal that the liability is restricted to Rs. 50,000/-. Such an argument advanced by him is on the ground that in filing the objection statement the appellant-Insurance Company had contended that the liability was limited to Rs. 1,50,000/-.
I have to point out at the outset that the Insurance Policy Ex. R-1 was marked by consent of the parties before the MACT. In Ex. R-1 as I see the column under head it is set out to say that for increased transfer of property limits u/s II-1(i) was unlimited, whereas u/s II-1(ii) in Schedule of Premium in page 1 of Ex. R-1-Insurance Policy is left blank, however under the title ''Limits of Liability'' in Ex. R-1, it had been clearly set out that limit of the liability is limited to Rs. 50,000/-. I see the reference to the section as above is very well set out therein under the said title ''Limits of Liability''. I feel it proper to quote the said para and the same reads as hereunder:
"Limits of liability.--Limit of the amount of the Company''s liability u/s UU(1)(i) in respect of any one accident:
Such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939.
Limit of the amount of the Company''s liability u/s II-l(ii) in respect of any one claim or series of claims arising out of one event: Rs. 50,000/-".
From the above condition imposed under the title Limits of Liability in Ex. R-1-Insurance Policy very well marked by consent of the parties, it appears to me that it is not available either for the respondent 1-driver or for that matter the respondent 2-owner to canvass an argument to say that the appellant-Insurance Company is liable to compensate the entire liability under the impugned judgment and award. When the learned Counsel for the respondent 1 had cited before me the decision reported in Oriental Insurance Co. Ltd. Vs. Dulari Devi , I have taken note that the learned Single Judge of the Patna High Court had relied upon a reported decision of the Supreme Court in National Insurance Company Limited, New Delhi v Jugal Kishore and Others. I have also gone through the said decision of the Supreme Court. Having done that I have to observe here that the answer to the argument of the learned Counsel for the respondent 1 is found in para 7 of the said judgment. The facts in the instant case in hand and the facts in the reported decision are on similar lines. In para 7 of the said judgment the Supreme Court observed as hereunder:
"A perusal of the policy, therefore, indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use (including the loading or unloading) of the motor vehicle falling u/s II(1)(i) has been confined to "such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939". This liability, as is apparent from clause (b) of sub-section (2) of Section 95 of the Act was at the relevant time Rs. 20,000/- only. The details of the premium also indicate that no additional premium with regard to a case falling u/s 11(1)(i) was paid by the owner of the vehicle to the Insurance Company. It is only the vehicle which comprehensively insured the insured''s estimate of value including accessories (I.E.V.) thereof having been shown as Rs. 40,000/-. In this view of the matter the submission made by learned Counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability does not obviously have any substance. The liability under the policy in the instant case was the same as the statutory liability contemplated by clause (b) of subsection (2) of Section 95 of the Act, namely, Rs. 20,000/-. An award against the appellant could not, therefore, have been made in excess of the said statutory liability".
From the above observation of the Supreme Court, it is clear that statutory liability of the Insurance Company is as contemplated u/s 95(2)(b)(i) of the Motor Vehicles Act, no matter that the Insurance Company had undertaken unlimited liability. Therefore, I am not left with any doubt that even if the appellant-Insurance Company in the instant case in filing the objection statement conceded that the liability of the Insurance Company was to an extent of Rs. 1,50,000/-, the same cannot go beyond what was covered under Ex. R-1-Insurance Policy. Therefore, it is futile for the learned Counsel for the respondent 1 to argue that the liability of the appellant-Insurance Company is beyond the statutory limit of Rs. 50,000/-.
At this stage, I am also assisted by the bar in citing an unreported decision of this Court in Miscellaneous First Appeal No. 1157 of 1984 (DD: 17-6-1991), wherein the Division Bench of this Court held that even when the columns are left blank in the Insurance Policy regarding the liability, it should not be taken that an insured had undertaken unlimited liability. That decision by the Division Bench was also by relying upon the above said reported decision of the Hon''ble Supreme Court.
In the said facts and circumstances of the case, I find every merit in the appeal filed by the Insurance Company. Therefore, I am also of the view that the MACT in passing the impugned judgment and award would not have fastened the liability on the appellant-Insurance Company beyond the statutory limit of Rs. 50,000/-, the limit of liability as set out u/s 95(2)(b)(i) of the Motor Vehicles Act, 1939. In the result, I pass the following:
ORDER
(i) The finding of the MACT that the respondent 1-driver was rash and negligent manner of driving the tempo bearing No. CNE 3427 and he who caused the accident resulting the accident injuries is upheld.
(ii) The further finding of the MACT that the respondent 1-driver and the respondent 2-owner are liable to compensate the respondent 3-claimant is also upheld.
(iii) The further finding of the MACT that the appellant-Insurance Company is liable to indemnify the respondent 3-claimant to an extent of Rs. 1,15,000/- is set aside. However, the appellant-Insurance Company is hereby held liable to indemnify the respondent 2-owner to pay the respondent 3-claimant to an extent of Rs. 50,000/- only out of the total liability of Rs. 1,15,000/-.
(iv) The award of grant of interest at 6% by the MACT in passing the impugned judgment and award is unaltered.
(v) The appellant-Insurance Company is hereby directed to pay a sum of Rs. 50,000/- together with interest at 6% p.a. from the date of petition whereas the respondent 1-driver and the respondent 2-owner are hereby directed to deposit the balance sum of Rs. 65,000/- together with interest at 6% p.a. from the date of petition. The respective sides shall pay the respective sum within 8 weeks from today after giving deduction for any sum or sums deposited by them either before this Court or before the MACT below.
The appeal therefore succeeds in part and accordingly allowed in part in the above terms. No costs.