JUDGMENT
D.V. Sehgal, J.
1. Samma Singh, aged 41 years, was employed as time keeper-cum-checker with Malwa Bus Service (P.) Ltd., Moga, appellant No. 1. On March 13, 1980, he was on duty and was travelling in bus No. PUU 1466 belonging to appellant No. 1 and driven by Malkiat Singh, appellant No. 2 on Amritsar-Ferozepur Road via Patti, when near village Kirtowal at about 5-00 p.m., the rear portion of the bus struck against dumper No. PUA 8779 belonging to M/s. Jolly Contractors, respondent No. 7, of which Kapoor Singh respondent No. 6 was the driver. As a result of this accident, Samma Singh received grievous injuries and succumbed to the same.
2. A claim application under Section 110A of the Motor Vehicles Act, 1939 (for short “the Act “) before the Motor Accidents Claims Tribunal (for short “the Tribunal”) was filed by Amrit Kaur, widow of Samma Singh, his two minor sons and two minor daughters who are respondents Nos. 1 to 5 herein claiming compensation from the appellants as also respondents Nos. 6 to 8 to the tune of Rs. 1,00,000 on account of the death of Samma Singh. The application was opposed by respondents Nos. 6 and 7 who in their written statements alleged that the accident had been caused due to rash and negligent driving of the bus by Malkiat Singh, appellant No. 2 and that they were not at fault. On the other hand, the appellants as also the insurance company, respondent No. 8 which is the insurer of the bus, took the stand in their respective written statements that the accident had been caused due to rash and negligent driving of the dumper by Kapoor Singh, respondent No. 6 and, therefore, he and the owner of the dumper, respondent No. 7, are liable. On the pleadings of the parties, the learned Tribunal framed the following issues:
1. Whether the petitioners are the legal heirs and dependants of Samma Singh deceased ?
2. Whether bus No. PUU-1466 was involved in accident with dumper No. PUA-8779 at 5.00 p.m. on March 19, 1980 on the Amritsar
Ferozepur Road, near village Kirtowal? If so, with whose negligence and rashness ?
3. If issue No. 2 is proved, whether Samma Singh, deceased, died as a result of the injuries caused in the accident ?
4. Whether the petition is bad for misjoinder of parties ?
5. To what amount of compensation, if any, the petitioners are entitled and against whom ?
6. Relief,
3. After receiving evidence and appreciating the same, the learned Tribunal held that claimants-respondents Nos. 1 to 5 are the legal heirs of Samma Singh, deceased ; that his death was caused as a result of the accident involving bus No. PUU-1446 and dumper No. PUA-8779 at the given place, time and date ; that the accident was caused due to rash and negligent driving of the bus by appellant No. 2 ; that the claim application was not bad for non-joinder of parties and that the claimants-respondents Nos. 1 to 5 were entitled to payment of compensation on account of the death of Samma Singh to the tune of Rs. 57,600 out of which Rs. 5,000 was determined to be the limited liability of the insurance company, respondent No. 8, while for the remaining amount, the appellants were held jointly and severally liable. Costs amounting to Rs. 150 was also awarded in favour of the claimants-respondents.
4. Aggrieved against the said award, the present appeal has been filed by the owner and driver of the bus. At the motion stage, however, the Division Bench admitted the appeal only as against respondents Nos. 6 to 8. This means the appeal against claimants-respondents Nos. 1 to 5 was dismissed. In view of this, it is not open to the appellants to question the quantum of compensation that has been determined by the learned Tribunal and awarded in favour of the claimants-respondents. The only question which has, therefore, been agitated before me is as to whether the owner and driver of the bus or the owner and driver of the dumper are liable for rash and negligent driving of their respective vehicles which resulted in the death of Samma Singh and who out of them is liable to payment of the amount of compensation determined by the learned Tribunal. Another point that has been agitated by the appellants during the course of arguments is that the learned Tribunal was wrong in limiting the liability of insurance company, respondent No. 8, to Rs. 5,000 only, in the absence of any plea in its written statement that its liability as insurer is limited to that extent.
5. I have heard learned counsel for the parties and on a reappraisal of the evidence and after giving my thoughtful consideration, I am of the view that the finding recorded by the learned Tribunal on issues Nos. 2 and 3 is unexceptionable. It is an admitted fact that Samma Singh was an employee of appellant No. 1, He was working as time-keeper-cum-checker and was travelling on the bus being driven by appellant No. 2. The hind portion of the bus struck against the dumper as a result of which Samma Singh received grievous injuries and succumbed to the same. Despite this, respondent No. 2 neither stopped the bus at the place of the accident nor lodged any report with the police about the accident making a complaint that it had been caused by the rash and negligent driving of the dumper as a result of which a valuable life was lost. This callous and uunatural conduct on the part of appellant No. 2 leaves no scope for doubt that he was driving the bus rashly and negligently and that its hind portion struck against the back portion of the dumper with such a forceful impact that Samma Singh who was inside the bus was seriously injured and died.
6. The appellants, no doubt, adduced evidence by producing Avtar Singh (AW-5) who stated that he was present at the place of the accident; that the dumper was suddenly moved back by Kapoor Singh, respondent No. 6, which bit against the back portion of the moving bus. He deposed that the dumper was being reversed by respondent No. 6 at a fast speed. It is, however, in the statement of Chaman Lal (RW-2) that Avtar Singh is an employee of respondent No. 1. His deposition to this effect has not been questioned in the cross-examination. It is thus clear that Avtar Singh was only a handy witness with the appellants and was produced with the aim of warding off the liability. The statement of Malkiat Singh in the witness box is not at all believable for the reasons already mentioned above. Kapoor Singh (RW-1), in his statement, has clearly deposed that the dumper was standing on a part of the road which had been closed by placing drums and was not open to traffic. The bus was being driven rashly and negligently : its hind portion hit against the back portion of the dumper and despite this, appellant No. 2 continued driving it and did not stop it. Learned counsel for the appellants has tried to contend that it was an equal responsibility of Kapoor Singh, respondent No. 6, to have lodged a report with the police regarding the accident. I do not agree with this submission for the simple reason that Kapoor Singh who was admittedly standing near the dumper could not have known that as a result of the accident, a passenger in the bus had received grievous injuries and had died. Damage caused to the dumper might not have been considered so serious as to actuate Kapoor Singh to lodge a report with the police. I, therefore, uphold the finding recorded by the learned Tribunal on issues Nos. 2 and 3.
7. It has then been contended by learned counsel for the appellants that no plea was raised by the insurance company, respondent No. 8, in its written statement that its liability under the insurance policy was limited. Relying on two Division Bench judgments of this court in Shri Ajit Singh v. Sham Lal [1986] 59 Comp Cas 946 and General Assurance Society Ltd. v. Avtar Singh [1987] 62 Comp Cas 218 (P&H) and two Single Bench judgments in Smt. Sudha Bahri v. Sarvjit Singh [1987] 62 Comp Cas 493 and Nishat and Malwa Bus Pvt. Ltd. v. Smt. Inder Kaur [1989] 66 Comp Cas 574, he contended that in such a situation, the Tribunal ought to have held respondent No. 8 liable for payment of the entire amount of compensation. I have gone through the written statement filed on behalf of respondent No. 8. In reply to para No. 15 of the claim application wherein it is averred that the bus was insured with it, respondent No. 8 has simply denied the said averment. Even in the additional pleas made in the written statement, there is no stand taken to the effect that if the bus is proved to have been insured with it, its liability is limited to Rs. 5,000 only per passenger. By a catena of case law to which reference has been made above, it is now well-settled that Section 95(2) of the Act merely prescribes the minimum but not the maximum liability of the insurance company. In other words, the insurance cover cannot be less than the sum mentioned in Section 95(2) ibid but it does not preclude a higher risk being covered by the insurance company. Therefore, in the absence of a specific plea by the insurance company that its liability is limited to any particular sum, its liability must be held to extend to the entire amount awarded.
8. Respondent No. 8 in the present case took a false plea denying the fact that the bus was insured with it. Thus, once it is proved that this plea is wrong and the bus was in fact insured with respondent No. 8, it must be held liable to payment of the entire amount of compensation.
9. Learned counsel for respondent No. 8, however, has made two submissions in defence. Firstly, he has submitted that the insurance policy has been brought on the record before the learned Tribunal as exhibit R-1 and a perusal of the same shows that the liability of respondent No. 8 was limited to such amount as is necessary to meet the requirements of the Act. I, however, find that exhibit R-1 is only a copy of the insurance policy. It was tendered in evidence by the statement of the counsel at the stage of closing the case. Section 64 of the Indian Evidence Act, 1872, provides that documents must be proved by primary evidence except in the cases mentioned in Section 65. Section 65 ibid lays down that secondary evidence relating to a document may be given of its existence, condition or contents in the case where the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or, of any person out of the reach of, or not subject to, the process of the court, or of any person legally bound to produce it and when, after receipt of the notice mentioned in Section 66 thereof, such person does not produce it. Secondly, evidence of a document can also be produced where the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any reason not arising from his own default or neglect, produce it in reasonable time or, where any of the other conditions specified in Section 65 exists. In the present case, none of these conditions has been proved. Therefore, the copy of the insurance policy, exhibit R-1, was not admissible in evidence as the conditions of Section 65 of the Indian Evidence Act, 1872, were not met. The copy of the insurance policy, exhibit R-1, therefore, cannot be read in evidence.
10. The second contention of learned counsel for respondent No. 8 is that nowhere in the grounds of appeal have the appellants raised the contention that the liability of respondent No. 8 is unlimited or that the Tribunal was wrong in holding it liable to the extent of Rs. 5,000. I find that this contention is also without force for the reasons that under Order 41, Rule 33 of the Code of Civil Procedure, the appellate court has the power to make any order which ought to have been made and to pass or to make such further or other order as the case may require, and this power may be exercised by the court notwithstanding the fact that no appeal or objection in this regard has been taken.
11. I, therefore, hold that the insurance company, respondent No. 8, is liable for payment of the entire amount of compensation, viz., Rs. 57,600, with costs as assessed and determined by the learned Tribunal.
12. As a result of the above discussion, this appeal is allowed and the award of the learned Tribunal is modified to the extent that respondent No. 8 is held liable for payment of the entire amount of compensation, i.e., Rs. 57,600, besides costs as assessed and determined by the learned Tribunal. There shall be, however, no order as to costs so far as this appeal is concerned.