JUDGMENT
Lok Nath Prasad, J.
1. This appeal is directed against the judgment dated 21.5.1992 passed in Claim Case No. 83 of 1986 by Mr. Shyama Prasad Singh, Addl. Claims Tribunal, Hazaribagh, thereby and there under the opposite party Nos. 1 to 3 were granted compensation to the tune of Rs. 90,000.
2. The fact, in short, for the purpose of this appeal is that on 13.1.1986 at about 9 a.m. or so the deceased Bansi Poddar was going home by a bus bearing No. BRW 7432, but as there was no accommodation inside the bus, so the khalasi asked the deceased to sit on the top of the roof. It has also been alleged that the driver of the bus was driving the vehicle rashly and negligently and when it reached near Azar Mor, the bus dashed against a telephone pole and so the deceased had fallen on the ground and sustained severe injuries and he was immediately removed to Sadar Hospital; Hazaribagh, where he was declared dead. In that very Sadar Hospital, the brother-in-law of the deceased had lodged an F.I.R. and so a police case was instituted and the post-mortem was held on the dead body of the deceased. As the death of the deceased took place due to accident, that too, involving a bus, the aforesaid claim case was instituted which was decided by the Tribunal. Maya Devi, widow and her minor daughter and son who are respondent Nos. 1 to 3 were the claimants before the Tribunal.
3. The claim case was filed as against the owner of the bus Safique Alam who is here respondent No. 4 and also against the appellant insurance company. The owner took the plea that the bus was comprehensively insured. The Tribunal on the basis of the evidence came to the conclusion that the death of the deceased took place due to rash and negligent driving by the driver of the bus bearing No. BRW 7432 and further recorded a finding that the monthly income of the deceased was Rs. 500 and it was multiplied by 12 and so the annual income was found to be Rs. 6,000 and then it was multiplied by 15 and thus an amount of Rs. 90,000 was awarded as compensation. Out of that Rs. 15,000 was paid earlier by the insurance company. So it was ordered that the claimants will receive compensation of Rs. 90,000 less Rs. 15,000 already paid.
4. Being aggrieved and dissatisfied by this order the insurance company preferred this appeal. In the appeal, respondent Nos. 1 to 3 are the claimants in the court below, neither appeared nor contested the same in spite of the proper service of notice. However, the owner of the bus, respondent No. 4, entered appearance through an advocate, but at the time of hearing of the appeal learned advocate for this respondent has not contested the appeal.
5. Admittedly, death of the deceased took place due to accident involving a bus bearing No. BRW 7432 belonging to respondent No. 4 Md. Safique Alam and this aspect was not challenged even by the appellant insurance company in the appeal. If that is so, the respondent Nos. 1 to 3 who are the claimants in the court below being the wife and minor son and daughter are entitled to realize compensation. The Tribunal has awarded compensation to the extent of Rs. 90,000 to the claimants, but the insurance company has not challenged the quantum of compensation at the time of hearing of appeal. So it does not require any interference.
6. The only plea taken on behalf of the insurance company by his learned Counsel is that there is violation of terms and conditions of the insurance policy and the employees of the owner of the bus in violation of the terms and conditions of policy allowed the passenger to sit on the roof of the bus and due to that, this accident took place and in any view of the matter, the liability of the insurance company is very much limited in view of the provision of Section 95 (2) (b) (ii) of the Motor Vehicles Act, 1939 and beyond the liability the excess amount of compensation is to be paid by owner of the bus.
7. Definitely from the impugned order it is clear that the insurance company filed the copy of the insurance policy in the court below itself, but surprisingly it has not been taken into consideration and marked as exhibit. Learned lawyer for appellant rightly submitted that this Court can look into this document under Order 41, Rule 27, Civil Procedure Code and a similar view was taken by a Bench of this Court in M.A. No. 60 of 1987 (R). Admittedly, the copy of the policy had also been filed by the insurance company in the court below, that too, prior to the judgment, but wrongly the court below has not taken into account this aspect and on perusal of the terms and conditions of the policy it can be said that the bus in question was insured for 51 passengers and the amount of premium was Rs. 612. In that view of the matter, the liability of the insurance company was very much limited to the extent of only Rs. 15,000 in view of the provision of Section 95 (2) (b) (ii) of the Act, 1939. Similar view was taken by the Supreme Court and it was held that in such a situation in view of the provisions as mentioned above, and according to the terms of policy if the accident occurs in a bus while a passenger is travelling on roof top, the insurance company is liable to pay only Rs. 15,000 and balance amount if any is to be paid by the owner of the bus.
8. So in view of the terms and conditions of the policy and the amount of insurance paid by the owner of the bus, the insurance company, that is, the appellant is liable to pay Rs. 15,000 only towards the compensation amount of Rs. 90,000. The owner of the bus who has figured as respondent No. 4 has not contested this appeal and challenged the contention of the insurance company. So far the reasons mentioned above, there are no two opinions that the claimants, that is, respondent Nos. 1 to 3 are entitled to realize Rs. 90,000 by way of compensation due to death of husband of respondent No. 1 and father of respondent Nos. 2 and 3 in an accident involving the bus of respondent No. 4. The insurance company is only liable to pay Rs. 15,000 and insurance company should pay the entire compensation amount as ordered by the Tribunal together with interest at the rate of 12 per cent per annum from the date of application less already paid, but the insurance company will realize Rs. 75,000, that is, less amount of Rs. 15,000 which the insurance company is liable to pay under the terms and conditions of the policy and the balance amount together with interest is to be paid by the insurance company, that is, to be realized from the owner of the bus, that is, respondent No. 4 here if permissible by certificate proceeding also, in view of Section 96 (4) of the 1939 Act. Accordingly, this appeal is allowed in part in the manner indicated above without any costs.