JUDGMENT
T.D. Sugla, J.
1. The appellant insurance company is the original defendant. The respondents are the original plaintiffs. They are the parents of the deceased Mahindra Shirke, an educated young boy, aged 22 years in the year 1980 when the accident took place. The said Mahindra had obtained loan from the Maharashtra Finance Corporation and Bank of Baroda under the Educated Unemployment Scheme for purchasing a goods truck in the year 1977 and actually purchased the truck bearing No. MHL 7170. The documents were naturally executed in favour of the Bank of Baroda, Kolhapur. It was said to be the condition precedent under the scheme that the goods truck should be driven by the owner himself. The said Mahindra had a driving licence for heavy vehicles and was stated to be in fact driving the truck ever since the truck was purchased. The truck was insured under the Commercial Vehicles Comprehensive Policy with the appellant insurance company. The risk of personal injury and property damage was covered to the extent of Rs. 10,00,000/-. The truck itself was insured for Rs. 1,27,000/-for damage to the truck. The truck met with the accident on January 8, 1980 as a result of which the said Mahindra died on the spot. The truck was also partly damaged.
2. The said Mahindra was unmarried at the time of his death. His heirs were his old parents, the plaintiffs, who filed the Motor Accident Claim Application against the insurance company on April 18, 1980 and claimed the insured amount for the personal injury to Mahindra and property as the heirs of the said deceased Mahindra. There was exchange of correspondence between the plaintiffs and the insurance company. Eventually, by its letter dated November 25, 1983, the insurance company agreed to pay for the damage to the truck assessed at Rs. 2,964.40 only and refused to pay the amount for personal injury resulting in the death of the said Mahindra.
3. The original plaintiffs filed application before the Motor Accidents Claims Tribunal on July 6, 1982. However, the Tribunal returned the claim application for presentation to the proper court. The plaintiffs then filed writ petition No. 1763 of 1983 in this Court and this Court vide its order dated June 22, 1983 rejected the petition. It is, in these circumstances, that the plaintiffs filed the present Special Civil Suit No. 20 of 1984 before the Joint Civil Judge, Senior Division, Kolhapur for recovery of Rs. 6,03,000/- from the insurance company. While Rs. 3,000/-was claimed for the damage to the truck, the sum of Rs. 6,00,000/- was claimed as damages on account of the death of the said Mahindra.
4. The insurance company filed its written statement at Exh. 15. It raised a number of objections. In the present proceedings we are not concerned with objections other than the following two objections, namely, (i) an additional premium of Rs. 134/- was paid apparently to cover the risk for unlimited personal injury and property damage up to Rs. 10,00,000/-. However, the expression ‘personal injury’ in the cover was wrongly typed in the policy and that the injury or the death of the owner of the truck was not covered by the insurance policy, and (ii) in any event the plaintiffs had given no basis for claiming damages at Rs. 6,00,000/- on account thereof. The learned Judge faithfully summarised the objections taken by the insurance company in para 2 of his judgment and framed as many as 10 issues for decision. For the purpose of this appeal, only two issues, namely, issue Nos. 1 and 5 are relevant. The issues read thus:
(1) Whether plaintiffs prove that the insurance policy of goods truck bearing No. MHL 7170 of deceased Mahindra also covers risk for unlimited personal injury and property?
(2) Whether plaintiffs prove that they are entitled to compensation of Rs. 6,00,000/-towards loss of life of deceased Mahindra and Rs. 3,000/- for the loss caused to the truck in view of the present pleadings?
5. The learned Judge did not accept the objection of the insurance company that the words ‘unlimited personal injury’ were wrongly typed in the insurance policy. It was observed that the additional premium of Rs. 134/- was paid and accepted for covering the risk of personal injury which meant and included the injury caused to the person of the owner of the truck, i.e., the deceased Mahindra. He stated that the driver of the truck was specifically covered by the insurance policy. The scheme under which the truck was purchased by the said Mahindra required him to drive the said truck himself. Therefore, it was not possible to accept the objection of the insurance company that the unlimited personal injury to the said Mahindra was not covered by the insurance policy. As regards the issue No. 5, the learned Judge accepted the claim of the plaintiffs that under the policy it was not necessary for them to prove the actual loss. They could claim Rs. 10,00,000/- by way of damages or compensation irrespective of the actual damage. It was for reasons beyond their control that they could not claim more than Rs. 6,00,000/- by way of compensation. For this and other reasons given in para 13 of his judgment, the learned Judge concluded that the plaintiffs’ claim of damages to the extent of Rs. 6,00,000/- was justified. Accordingly, the suit was decreed for Rs. 6,02,964.40. The insurance company was directed to pay future Interest at the rate of 12 per cent per annum on the said amount for the period from the date of institution of the suit till the realisation of the amount, and to pay the costs of the suit to the plaintiffs.
6. It is submitted before us by Mr. Kamat, the learned Counsel for the appellants, that the trial Judge failed to appreciate the real controversy between the parties and that his finding as regards the compensation of Rs. 6,00,000/- for the death of the owner of the truck, the deceased Mahindra, was not justified. In this context Mr. Kamat referred to the provisions of Section 95 of the Motor Vehicles Act, 1939. Under that section it was obligatory on the owner of the vehicle to have third party insurance. In the nature of things insurance policy taken under Section 95 of the Motor Vehicles Act would not cover the claim for damages to the property or person of the owner of the truck. Fairly admitting that the policy taken by the said Mahindra was a commercial vehicles comprehensive insurance, Mr. Kamat relied on Karnataka High Court decision in the case of United India Fire and General Ins. Co. Ltd. v. Azeerunnisa and the Supreme Court decision in the case of National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), for the purpose of showing that the insurance policies in regard to the motor vehicles are taken for the purpose of indemnifying the owners of the vehicles from the damages caused to their properties as also the loss that they might suffer as a result of damages and/ or compensation payable by them to third person. In the present case the deceased Mahindra, i.e., the owner of the truck having himself died in the accident it cannot be said that he was or is liable for damages or compensation to somebody else and so long as there is no liability on him, the insurance company, according to Mr. Kamat, cannot be held liable. As regards the additional payment of premium of Rs. 134/-, it was the contention of Mr. Kamat that under the statute, risks covered under the insurance policy are limited. Ordinarily, when the owners of the trucks are found liable to pay damages to third parties beyond limits covered by the insurance policy, they have to pay personally the damages in excess of those limits. The payment of additional premium, according to Mr. Kamat, ensures additional or further indemnity in respect of damages to third parties but it certainly does not change the nature of the risk. In order to illustrate his submissions, Mr. Kamat referred to the Report of the Tariff Advisory Committee, which, according to him, had statutory force. The nature of the policy taken in this case, it was stated, is indicated at pages 68, 120 and 120-A of the Report. It is made abundantly clear that the policy as a whole and the additional amounts paid thereunder are only to cover public risk, i.e., risk to persons other than the owner of the truck. Referring then to the expression ‘any person’ used in Section II of the policy, he stated that the expression had to be read in the background of principle ejus gem generis. In other words, this word ‘any’ would take colour from Clause 1 of Section II which is essentially for the purpose of covering liability to third parties. In this connection it was first submitted that the word ‘any’ meant and would mean a person other than the owner. In support he placed reliance on Gujarat High Court decision in the case of United India Insurance Co. Ltd. v. Jagatsinh Valsinh 1986 ACJ 951 (Gujarat), this Court’s decision in the case of Sharda Prasad Singh v. Maharashtra State Road Transport Corporation 1984 ACJ 240 (Bombay) and Gauhati High Court decision in the case of Assam Corporation v. Binu Rani Ao 1974 ACJ 381 (Gauhati).
7. As regards the quantum of compensation, Mr. Kamat stated that the expression “unlimited personal injury and property damage up to Rs. 10,00,000/-” only meant that actual damage or Rs. 10,00,000/-whichever was lower. It was for the plaintiffs to prove that they had or were likely to suffer pecuniary loss of equal to or more than Rs. 6,00,000/- as a result of the death of the owner of the truck, the deceased Mahindra.
8. Mr. Rege, the learned Counsel for the plaintiffs, on the other hand, strongly relied on the judgment and order of the trial Judge. In particular he stated that in order to appreciate the real controversy in this case two things are required to be borne in mind, namely, (i) the claim herein was not under Motor Vehicles Act. It was on the basis of a contract. Therefore, the pertinent question was to ascertain the exact nature of the contract and whether it covered the injury including death of the owner of the truck Mahindra, in this case. The second aspect, according to him, was that under the contract the plaintiffs were not required to show actual loss of Rs. 6,00,000/-. Assuming but not admitting, the claim had to be considered under the Motor Vehicles Act, Mr. Rege contended that the Motor Vehicles Act merely laid down what was compulsorily required of the owner of the vehicle. There was no prohibition that the insurance company would not cover risks other than the risks mentioned in the Motor Vehicles Act. It was open to the parties to agree to extra terms on payment of extra and additional premiums. In this case the insurance company has accepted Rs. 134/- as an additional premium to cover the risk for unlimited personal injury and property damage up to Rs. 10,00,000/-. In the circumstances, it is not open to the insurance company to say that the owner of the truck was not covered by the insurance policy. Further, according to Mr. Rege, the case made out by Mr. Kamat before this Court was not the case of the insurance company before the lower court. Before the lower court the insurance company had merely stated that the words ‘personal injury’ were wrongly typed in the policy. Therefore, the arguments now made by Mr. Kamat may not, strictly speaking, be available to him at this stage of the proceedings. As regards quantum, Mr. Rege reiterated that the expression “unlimited personal injury and property damage up to Rs. 10,00,000/-” for which additional premium of Rs. 134/- was paid and received by the insurance company meant that for injury or loss, the plaintiffs were entitled to claim compensation up to Rs. 10,00,000/-. It was not further necessary for them to prove the actual damage. Mr. Rege’s proposition was that this expression would entitle the owner of the truck to claim damages at Rs. 10,00,000/- even when the actual damage as a result of personal injury or loss to property was meagre. The trial Judge, according to Mr. Rege, correctly appreciated the legal position in paras 3, 5 and 13 of his impugned judgment.
9. We have given serious consideration to the rival contentions raised before us by the learned Counsel on both sides. We have first to consider the provisions of Section 95 of the Motor Vehicles Act which enjoins upon the owner of the vehicle to have compulsory insurance. That insurance admittedly covers third party risk. There is not even a suggestion that the insurance policy taken under Section 95 of the Motor Vehicles Act covers any risk, damage or injury to the owner of the vehicle or to the vehicle. We have next to consider the purport and scope of what is known as comprehensive policy. While policy under Section 95 of the Act is compulsory, the comprehensive policy is optional. Here again there is not even a suggestion that the comprehensive policy taken as such would cover personal injury to the owner of the truck. The comprehensive policy, it is common ground, only means that it will also cover the damage to the vehicle insured irrespective of the fact at whose fault the damage occurred. Therefore, what really requires examination is the nature and extent of risk covered by the payment of extra premium of Rs. 134/- paid and accepted by the insurance company apparently for unlimited personal injury and property damage up to Rs. 10,00,000/-.
10. Before doing so, it is necessary to deal with Mr. Rege’s objection that the case of the insurance company before the trial Judge being different, it was not open to the insurance company to take up a different stance before this Court. Factually Mr. Rege is correct. Yet we are not inclined to accept his argument that merely because the insurance company had not raised the contention on merit before the trial court, it should be precluded from doing so before this Court. This contention, it is to be noted, is purely legal. In any event it has nothing to do with any fact and/or material not on record. This is a pure and simple question of interpretation of the policy vis-a-vis the risk covered by the policy on account of payment of additional premium of Rs. 134/-.
11. In order to examine the contention on merits, it is desirable to refer to the insurance policy. Section I of the policy covers loss or damage. This loss or damage is obviously the loss or damage to the vehicle which is the property of the owner. Section II of the policy covers liability of the owner of the vehicle to third parties. Third parties certainly do not include the owner of the truck. The word ‘any’ used in Clause 1 (i) of this section, therefore, requires to be interpreted as covering third party risks only. Section III of the policy refers to ‘towing disabled vehicles’. Other heads under this section are ‘Avoidance of certain terms and right of recovery’, ‘Application of limits of indemnity’, ‘General exceptions’, ‘No-claim discount’, etc. These have obviously no bearing on the question before us. In the Schedule of the policy it is found that for recovering the damage to and loss of the truck, the insurance is for Rs. 1,27,000/-. For covering risks on I.E.V., additional tonnage, strike and riot additional premiums are paid. Additional premium of Rs. 64/- is also paid to cover risk known as W.L.L. to driver/ cleaner and 6 coolies. Further additional premium of Rs. 134/- is paid to cover the risk described in the policy as ‘unlimited personal injury and property damage up to Rs. 10,00,000/-‘. According to Mr. Rege, the payment of additional premiums under the last two heads is quite relevant in this case. If the driver is covered and when the owner of the truck had to be and was driving the truck, the injury to the owner including death must necessarily be deemed to have been covered under the policy. Reference was made in this context to the fact that ‘insured’ himself could certainly be the driver of the vehicle. Of course, any other person provided he is in the insured’s employ and provided that he had driving licence and was driving under his orders could also drive the truck. Great emphasis was laid by Mr. Rege on the fact that the policy under which the truck was purchased by the said Mahindra required the said Mahindra to drive the truck. He was the driver of the truck not by choice but as a matter of necessity and therefore he had to be treated as covered by the insurance policy. Superficially looked at the argument is attractive and ingenious. However, on careful examination of the last portion of the Schedule on which great emphasis was laid by Mr. Rege it is seen that the last three heads under the policy lay down further conditions for the insured to be entitled to claim damages from the insurance company. The heading ‘Limits of liability’ refers to the extent of liability of insurance company. The heading ‘Limitation as to use’ provides that the insured shall be entitled to claim damage only if certain other conditions are satisfied as to the use of the vehicle. Who can drive the vehicle is further one such condition. In our judgment, these are the further conditions which must be satisfied in order to entitle the ‘insured’ to claim damages from the insurance company in respect of risks covered under the policy referred to by us earlier. These conditions do not certainly have any impact on the nature and extent of risk covered. Thus, on the fact of it as the insurance policy stands, we are inclined to accept Mr. N.B. Kamat’s submission that the policy taken by the late Mahindra as ‘Commercial Vehicles Comprehensive Insurance’ despite additional payment of Rs. 134/- for ‘unlimited personal injury and property damage’ did not cover injury to the ‘insured’, i.e., the deceased owner which might include even his death by the accident. Tariff Advisory Committee’s Report, pages 68, 120 and 120-A, referred to by Mr. Kamat, also supports his submission. Karnataka High Court decision (supra) clearly lays down that the additional premiums, in the nature of things, are paid to make insurance company liable in excess of its statutory liability under Section 95 of the Motor Vehicles Act. In other words, the extent of the liability covered by Section 95 of the Motor Vehicles Act can increase and not its nature as a result of payment of additional premiums. The above decision is certainly an indirect but if not a direct authority for the proposition that the ‘comprehensive insurance policy’ is also basically a policy to indemnify the owner of the truck in respect of the risk to the third parties with the difference that the damage or loss to and of his own truck is also covered by the policy. The Supreme Court decision in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), clearly lays down that:
Comprehensive insurance of the vehicle and payment of higher premium on this score do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under Sub-section (2) of Section 95 of the Motor Vehicles Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. Likewise, if risk of any other nature, for instance, with regard to the driver or passengers etc. in excess of statutory liability, if any, is sought to be covered it has to be clearly specified in the policy and separate premium paid therefor. This is the requirement of Tariff Regulations framed for the purpose.
It is evident from the above quotation that for the purpose of covering risk other than statutory liability, what requires to be seen is the object for which the additional premium is paid separately and the nature and extent of liability undertaken by the insurance company. This is what has exactly been argued by Mr. Kamat before us. Gujarat High Court has in terms held that insurance is a contract of indemnity and the insurance company is to indemnify the owner to the extent he is or may be liable. Insurance company cannot be held liable if the owner, i.e., the insured is not liable. This decision, to our mind, clearly and fully supports the case of the insurance company. In this Court’s decision in Sharda Prasad Singh v. Maharashtra State Road Transport Corporation 1984 ACJ 240 (Bombay), also it has been held that the insurance company can be held liable for beyond statutory limits provided additional premium is paid. In fact, there is no dispute about this proposition before us. Mr. Rege, it may be stated, cited this Court’s decision In re: British India General Insurance Co. Ltd. . In particular he placed reliance on para 12 of the judgment. However, that was a case of contingency insurance and not of motor vehicle insurance. In that view of the matter, the decision relied on by Mr. Rege is not applicable in the facts of this case.
12. Thus the judicial conscience, particularly in view of the Supreme Court decision in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), is that even in a comprehensive insurance policy, the liability of the insurance company under Sub-section (2) of Section 95 of the Motor Vehicles Act is limited. If an owner of vehicle desires to cover risks in excess of statutory liability, he has to pay additional amount as premium and the nature and extent of such a risk requires to be specifically mentioned in the policy. Likewise if a risk of any other nature is covered, additional premium is to be paid and the policy has to specify about the nature of the risk covered. Therefore, ultimately what we have to see in this case is the object of the payment of Rs. 134/- paid by the late Mahindra and accepted by the insurance company. As we read between the lines of the decisions referred to, we are of the view that the amount has been paid for covering the risk in excess of statutory liability in regard to the third party risks and not the personal injury or death of the insured.
13. Having regard to the above discussion we accept the contention of Mr. Kamat that defendant insurance company is not liable to pay any compensation to the plaintiffs on account of the death of their son, late Mahindra, who had insured his vehicle under a Commercial Vehicles Comprehensive Insurance Policy. Strictly speaking, it is not necessary for us to further consider whether computation of damages at Rs. 6,00,000/-by the trial Judge was justified, although on the face of it we are inclined to accept Mr. Kamat’s submission that the words ‘up to’ used in the expression “unlimited personal injury and damage up to Rs. 10,00,000/-” only means and would mean that the actual damage or loss or Rs. 10,00,000/- whichever is lower. Therefore, it was for the plaintiffs to show the exact amount of damage or loss that would be suffered by the plaintiffs as a result of the death of their only son, late Mahindra. Needless to mention, even though the insurance company as held by us above was not liable, Mr. Kamat for the insurance company had made an offer to pay a reasonable amount ex gratia which could cover the actual loss likely to be suffered by the plaintiff parents. However, on instructions from his clients, Mr. Rege stated that his clients were not prepared to accept the offer made by Mr. Kamat for ex gratia payment.
14. In the result, the judgment and decree passed by the trial Judge directing the defendant to pay the amount of Rs. 6,02,964.40 to the plaintiffs is set aside. Instead thereof, there shall be a decree for an amount of Rs. 2,964f40 to be paid to the plaintiffs by the defendant.
15. The defendant insurance company is directed to pay the future interest at the rate of 12 per cent per annum on the said amount of Rs. 2,964.40 from the institution of the suit till the realisation of the amount.
16. No order as to costs.
17. Whatever amounts are deposited by the appellant insurance company in pursuance of the earlier order passed by this Court, the appellant will be entitled to refund of it.