JUDGMENT
Tatia, J.
1. There are two sets of appeals against the award of the Motor Accidents Claims Tribunal, Phalodi dated 19th April, 1996. One set of the appeals on behalf of the New India Assurance Company Ltd. and another set of the appeals are from National Insurance Company Ltd.
2. It is alleged that on 7th July, 1990 accident took place at Bhap-Phalodi Road. Some passengers were travelling in the Jeep No. RJ-19 T-1079, which was being driven by Hakim Khan @ Abudal Hamid. It is alleged that driver of the truck No. RJ07/G0034 came rashly and negligently and hit the Jeep causing accident resulting into death of six persons and injuries to several other persons. The claimants preferred claims against the driver, owner and Insurance Companies of both the vehicles. All the claim petitions were consolidated after framing issues. The point for determination before the tribunal was whether there was any negligence of the driver of the truck in causing accident whereas in some of the claim petitions issue was whether there was negligence of the drivers of both the vehicles. Meaning thereby the point for determination before the tribunal was whether it was a fault of the driver of the one vehicle or whether the accident occurred due to the fault of both the drivers. The trial Court after recording evidence held that there was negligence of both the drivers of both the vehicles and both are liable equally in the claim petitions of the claimants and it was held by the tribunal that due to accident Deendayal died, Pannaram suffered injuries, Parmaram also suffered injuries whereas Babulal died and in claim case No. 5 it was held that due to accident Jeep of the applicant was damaged. It was also found that Manaram and Mohanlal also died in the accident.
3. The New India Assurance Company Ltd. by preferring appeals challenged the finding of the tribunal firstly on the ground that tribunal has committed illegality in holding that Insurance Company is liable for the entire amount of the claim. According to learned counsel for the appellant, the Insurance Police was issued by the appellant-Insurance Company on 28th July, 1989 and premium charged from insurance was as per the tariff, which was applicable before its revision. The accident occurred on 7th July, 1990. According to learned counsel for the appellant tariff of after coming into force of the Motor Vehicles Act, 1988 was changed. The insured was not charged with new tariff, which was fixed after coming into force of New Motor vehicles Rules, therefore, the appellant and the insured are governed by the terms and conditions and the restrictions mentioned in the Insurance Policy and not by the provisions of amended law. The Insurance Company has not charged any additional premium for making the Policy for unlimited liability for the persons travelling in the Jeep were also only entitled for the amount upto the extent of Rs. 15,000/-. Therefore, the tribunal committed illegality in holding the appellant liable for the entire award amount. Learned counsel for the appellant further submitted that this is a case of negligence of the driver of the truck and, therefore, the appellant- company is not liable for the award amount and in alternative there was a contributory negligence of the driver of the truck also. Therefore, looking to the category of both the vehicles, the liability of the truck is required to be fixed at least 75% and the appellant can be liable upto the extent of 25% of the liability only.
4. Learned counsel for the appellant for the National Insurance Company Ltd. submitted that it is clear from the evidence that it was the total negligence of the driver of the Jeep and, therefore, liability should have been fastened upon the driver of the Jeep and consequently owner and Insurance Company of the Jeep. It was also submitted in the alternative that if it is held that this is a case of contributory negligence then there is sufficient material available on record, which proves that there was more negligence of the driver of the Jeep and the truck driver was not negligent so as to held liable for full amount or even for the amount more than 25%.
5. Learned counsel for the claimants vehemently submitted that this is a case of a composite negligence and, therefore, the tribunal has rightly awarded the award against all the parties and the tribunal has held all the non-applicants jointly and serveraily liable and it is the choice of the claimant to recover the amount from any pf them. It is also vehemently submitted by learned counsel for the claimants that in case of a contributory negligence, the award can be apportioned and proportioned between the two tortfeasors and the claimants, who are third party, their rights cannot be affected by limiting the liability of one of the tortfeasors to a particular extent.
6. First of all, it is required to be seen whether the liability of the appellant New India Assurance Company Ltd. is limited liability either under the Policy or under the Act and if the liability of the Insurance Company under the Policy is said to be limited then whether this limited liability continuous even after coming into force of the Act of 1988. Sub-clause (c) of Sub-section (2) of Section 95 provides limits the liability of the insurance company and it is provided that liability of the Insurance Company in respect of passengers shall be upto Rs. 15,000/- only for each individual persons. Learned counsel for the appellant submitted that appellant produced evidence to prove the limited liability of the appellant-Insurance Company and there is a specific clause in the Insurance Policy for charging premium of Rs. 12/- for passenger in the vehicle, which was applicable when old Act was in force. Therefore, the parties are governed by the terms and conditions provided in the Insurance Policy in view of the even Section 147 of the Motor Vehicles Act, 1988.
7. To appreciate the contention of learned counsel for the appellant, the dates are relevant. The Act of 1988 came into force on 1st July, 1989 and Insurance Policy was issued on 28th July, 1989 after coming into force of the Act of 1988. The accident occurred on 7th July, 1990. It is clear from the entire reading of the Section 147 of the Act of 1988 that under the Act of 1988 the liability of the Insurance Company is unlimited. The proviso to Sub-section (2) of Section 147 provides that Policy issued with limited liability and which was in forced immediately before the commencement of the Act of 1988 shall continue to be effective only for a period of four months after such commencement or till the date of expiry of such policy, whichever is earlier. Learned counsel for the appellant could not point out any of the provisions, which saves the condition of limited liability of the insurance company even after coming into force of the Act of 1988 whereas Section 147 of the Act of 1988 clearly provides that liability shall be unlimited against the Insurance Company. When Policy was issued, admittedly, after coming into force of the Act of 1988 by the appellant-Insurance Company then the appellant-company to the fully extent of liability. Here in this case, learned counsel for the appellant submitted that the tariff for the premium was changed in the year 1990. This submission of learned counsel for the appellant further fortifies that insured paid full amount of the premium, which he was required to pay and the Insurance Company was not entitled to charge anything more than what they have charged for the Policy, which was issued after the Act of 1988. Any condition in the policy, which goes absolutely contrary to the provision of statutory law cannot be recognized. The Hon’ble Apex Court also, while considering Section 95(2) of the MV Act, 1988 and provisions of the Act of 1988 in the case of National Insurance Co. Ltd. v. Behari Lal and Ors., JT 2000(10) SC 39, held that liability of the Insurance Company is governed by the provisions of the Act of 1988 and not by the Act of 1939. In that case Policy was issued on 28th Oct., 1988 (before coming into force of the Act of 1988) having validity till 27th Oct., 1989 and the Act of 1988 came into force on 1st July, 1989 even then it was held that the Insurance Company is liable for full liability. Therefore, the point raised by the learned counsel for the appellant deserves to be rejected and it is held that appellant-company is liable for the amount to the full extent awarded by the tribunal and liability of the appellant-Insurance company is not limited liability.
8. So far as contention of learned counsel for the appellant in the case of New India Assurance Company Ltd. that there is a case of contributory negligence and the tribunal has committed illegality in not given award by apportioning of the amount, according to learned counsel for the appellant the other vehicle, which was insured by the National Insurance Company was a heavy vehicle and, therefore, it can be presumed that the driver and owner of the heavy vehicle are more liable. I am unable to accept this submission of learned counsel for the appellant New India Assurance Company Ltd. The contribution towards accident cannot be determined merely on the basis of the class of the vehicle. Next, it was submitted that the Jeep was carrying with more passengers is not permissible and, therefore, it was submitted by learned counsel for the National Insurance Company Ltd. that driver of the Jeep was negligent. This contention of learned counsel for the National Insurance Company Ltd. is also devoid of any force because, the excess passengers in a vehicle will not permit the driver of the other vehicle to driver the vehicle rashly and negligently or to hit the other vehicle. For this reliance can be placed upon the decision of the Division Bench of this Court delivered in the case of National Insurance Company Ltd. and Ors. v. Kastoori Devi and Ors., 1988 ACJ 8.
9. Now the question arises whether in this case, the tribunal has committed any illegality in not apportioning the award of the compensation between the two sets of tortfeasors. In view of the judgment of this Court (1988 ACJ 8) (supra) mentioned above, it is clear that there may be situations in which the court may come to the conclusion that this is a case of composite negligence and the liability cannot be apportioned and in that case the liability is joint and several. The Division Bench of this Court in the above case of National Insurance Co. Ltd. (supra) held that in a case of composite negligence there is no method or indicia to bifurcate or apportion the liability and the only course open in such cases can be to make them both liable jointly or severally and, thereafter, observed that so far as the claimants are concerned, they can realise the amount from any one of the insurance companies. In view of above it is held that in case of composite negligence, rights of the claimants are kept intact so far as it relates to the recovery of the amount and the claimants can recover the entire amount from any of the tortfeasors.
10. The matter do not come to an end here, in view of the peculiar facts of this case, that one of the claimants in the claim petition is none else than the driver of the jeep, whose Jeep was involved in the accident. While deciding that claim petition of the driver of the Jeep, the tribunal held the contributory negligence of the driver of the jeep is upto the extent of 50% and negligence of the driver of the truck as 50%.
11. If the tribunal gives a finding that there is a contribution towards the accident by the driver of the one vehicle is upto the particular extent then the tribunal cannot held that it is a case of composite negligence because it will go contrary to the finding recorded by the tribunal itself. The Division Bench of this Court observed that in case of composite negligence there is no method to bifurcate or apportion the liability, but here in this casein the impugned award itself the tribunal has recorded the finding of contributory negligence of the driver of the Jeep upto the extent of 50% then it does not lie in the mouth of the tribunal to say that the tribunal is not in position to give finding with respect to the contribution of the driver of the Jeep while deciding the claim case of the other claimants. It is not the contribution towards making the payment of the award, but it is the contribution towards the accident and for this there cannot be two findings in the matter of one accident and different claims are decided by common award, therefore, the award passed by the tribunal, in the peculiar facts and circumstances of the case, is entirely different and the law laid down by the Division Bench of this Court in the Case of National Insurance Company Ltd. (supra) has no application and it is held that in view of the finding recorded by the tribunal that the driver of the jeep was liable for the contribution lowards the negligence upto the extent 50%, the liability of both the Insurance Companies stands 50% to the amount awarded by the tribunal.
12. In view of the reasons given above, the appeals of the New India Assurance Company Ltd. by which the New India Assurance Company Ud. has challenged the finding of the the tribunal on the basis of plea of the limited liability arc dismissed. The appeals of the appellants National Insurance Company Ltd. by which they have challenged their liability is partly allowed and it is held that driver of both the vehicles, owners of both the vehicles and, consequently, the Insurance Companies of both the vehicles are liable for the awarded amount upto the extent of 50% each. Stay orders passed earlier are vacated.