JUDGMENT
Arun Kumar Goel, J.
1. The appellant insurance company has filed this appeal against the award of the Motor Accidents Claims Tribunal, Solan in M.A.C. Petition No. 80-S/2 of 1989 dated 7.3.1992. While allowing the above petition compensation in the sum of Rs. 1,62,000 has been awarded to the respondents-claimant Nos. 1 to 6 in equal shares and has been made payable by the owner of the truck Gurnam Chand as well as by the insurance company, i.e., the present appellant. They were held to be entitled for payment of interest at the rate of 9 per cent per annum from the date of the award, i.e., 7.3.1992 in case this amount is deposited by the said respondents within 60 days; failing which they shall be liable to pay interest at the rate of 12 per cent per annum on the awarded amount from the date of petition, i.e., 10.5.1989 till its payment/deposit. Costs of Rs. 550 has also been imposed on the appellant as well as respondent No. 7, i.e., the driver of the vehicle.
2. In this case facts by and large are not in dispute as such brief reference is being made to those. Claim petition was filed by Satya Devi, widow, Krishna Devi, mother, Rekha, daughter and Kundan, Balbir Singh and Surinder Singh being sons of the late Mohan Lal. The deceased Mohan Lal was working in Indian Air Force. While travelling in an Air Force truck on 2.2.1989, it met with accident with another truck No. HIA 6172. Truck No. HIA 6172 was on downhill journey when this accident took place near Jabli at about 8 p.m.
3. Respondent Gurnam Chand was its owner-cum-driver. Accident was attributed to the rash and negligent driving on his part. It may be noted here that the Air Force truck was on uphill journey on the Kalka-Shimla National Highway. Learned Tribunal below held that the deceased died due to rash and negligent driving of the vehicle No. HIA 6172 and there was no composite negligence by drivers of the vehicles HIA 6172 and of the Air Force. Thus compensation as aforesaid was awarded in this case.
4. Limited question as to liability of the appellant insurance company is involved in this appeal. Appellant amongst other pleas had urged that its liability is limited under the Act as per terms of insurance policy issued by it.
5. We are constrained to observe in this case that as a custodian of public money appellant did not take any steps in accordance with law either to place correct or complete copy of insurance policy at the time of trial before the Tribunal below. This shows the casual manner as well as the cursory approach on the part of appellant in conducting the case. It appears that those who are responsible for ensuring proper conduct of the proceedings were totally oblivious of the fact that they, if not to themselves, at least owe a duty to the public at large while dealing with the public funds in their hands. This is high time that insurance companies like appellant do some introspection and devise ways and means to properly protect its interest and thus avoid litigation in avoidable case like the present one. In case insurance company had led proper evidence after firstly having got the original policy summoned from the insured-owner when he appeared as RW 1 in the witness-box; and on his failure to do so by taking recourse to law and thus leading evidence from its record by proving a complete copy of the insurance policy along with its terms and conditions at least this appeal could have been avoided. Instead of looking into the matter properly this appeal appears to have been filed in a routine and mechanical manner ignoring what was required to be done by the appellant company, with a view to protect its interest, raising a plea in its defence was not enough, but something more was required to be done on behalf of the appellant company.
6. Mr. Kapoor on the basis of materials on record made an attempt to persuade the court that after looking to Exh. P-3, liability of insurance company stands duly proved to be limited and thus any amount over and above Rs. 1,50,000 is payable by Gurnam Chand owner-driver of the truck in question. With a view to buttress his this line of argument by referring to Exh. P-3 he urged that no extra premium was charged by his client so as to hold it liable for any liability beyond, as well as over and above what was required under the Motor Vehicles Act. It was not disputed at the time of hearing of this appeal that on the date of accident Motor Vehicles Act, 1939 was applicable and the case is to be decided under it. As per provisions of the Act, insurance company was required to cover liability to the extent of Rs. 1,50,000, whereas beyond that it was the liability, if any, of the owner. Unless by paying extra premium the risk had been covered beyond Rs. 1,50,000 under the 1939 Act. In this behalf it may also be noted that while appearing as RW 1 it is not the case of owner-driver Gurnam Chand that he had paid any extra premium, so as to cover additional risk holding the appellant liable for the payment thereof. He admitted Exh. P-3 being the copy of the policy of insurance issued to him.
7. In this background plea of Mr. L.C. Kapoor that liability of his client is limited to the extent of Rs. 1,50,000 needs to be examined. Mr. Dogra learned counsel appearing for the claimants submitted that this plea is not available to the appellant. Reason being that there is no evidence led by the appellant to show that its liability is limited. Similarly, Mr. J. Vats, learned counsel for owner-driver submitted, that all exclusions including that of limited liability were to be established by the appellant. Since no evidence had been produced with a view to support this plea, he, while supporting Mr. Dogra, urged for dismissal of this appeal with costs throughout.
8. So far Exh. P-3 on which reliance is placed by Mr. Kapoor is concerned, it only speaks of the appellant having charged premium for liability to the public risk. Under the Indian Motor Tariff appellant insurance company issues following type of policies:
(1) Comprehensive Insurance Policy: Covers loss of or damage to the insured’s vehicle by accidental external means or malicious acts, fire, external explosion, lightning, self-ignition, frost (for private cars only), burglary, housebreaking or theft, riot and strike, flood, inundation, typhoon, hurricane, cyclone, hailstorm, earthquake (fire and damage), also whilst in transit by road, rail, inland waterway, lift, elevator or air subject to the limitations mentioned in the policy plus liability to the public risks including Act, liability as mentioned below.
However, it is permissible to exclude perils as underlined above from the scope of the policy, against discount from the premium as mentioned in ‘General Regulations’ No. 18.
(2) Liability to the Public Risk (Third Party Insurance Policy): Provides indemnity to the insured against legal liability for claims by the public in respect of accidental personal injury and/or damage to property caused by or arising out of the use of the insured vehicle.
(3) ‘Act Only’ Liability Insurance Policy: Provides indemnity to the insured against legal liability for claims by the public in respect of accidental personal injury and/or damage to any property of third party caused by the insured vehicle in a public place, as is necessary to meet the requirements of Sections 92-A and 95 of the Motor Vehicles Act, 1939.
9. So far truck in question is concerned, learned counsel for the parties submitted that it was a class A (2)-Goods carrying vehicle-General cartage (public carrier). Premium charged by the appellant in this case was as under:
_____________________________________________________________
Licensed Own damage Liability to 'Act Only'
carrying the public
capacity risks
______________________________________________________________
(a) to (c) xxx xxx xxx
(d) Exceeding Rs. 850 plus Rs. 240 Rs. 200
Rs. 200 for
5080 kg. tons (5) each additi-
onal 1010 kg.
(1 ton) or part
thereof
plus 1.10%
on I.E.V.
_________________________________________________________________
10. Types of policies issued by the insurance company under the Indian Motor Tariff have been extracted hereinabove. In this case premium of Rs. 240 charged in Exh. P-3 is to cover the liability to the public risks and it provides indemnity to the insured against legal liability for claims by the public in respect of accidental personal injury and/or damage to property caused by or arising out of the use of insured vehicle. In the face of this position, sum of Rs. 240 mentioned in Exh. P-3 only covers liability to public risks against legal liability for claims. Though learned counsel for the claimants as well as owner, submitted that in case it was an Act only policy, then the premium would have been Rs. 200. Thus by charging Rs. 240 liability of the insurance company became unlimited. This plea cannot be accepted for the simple reason that policy only speaks that it covered liability to public risks for which premium of Rs. 240 was charged. In the face of this position plea of the insurance company deserves to be upheld.
11. In addition to this, this issue is no more res Integra in view of the decision of Constitution Bench of Supreme Court in New India Assurance Co. Ltd. v. C.M. Jaya 2002 ACJ 271 (SC), wherein in para 5 it was held as under:
(5) Thus, a careful reading of these decisions clearly shows that the liability of the insurer is limited, as indicated in Section 95 of the Act, but it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability. This view has been consistently taken in the other decisions of this court.
12. Besides this, there is no evidence produced by either side to show that by charging Rs. 240 unlimited liability of public risk is covered. Taking note of such a situation in the case of New India Assurance Co. Ltd. v. CM. Jaya 2002 ACJ 271 (SC), it was observed as under (para 11):
(11) In the premise, we hold that the view expressed by the Bench of three learned Judges in the case of Shanti Bai 1995 ACJ 470 (SC), is correct and answer the question set out in the order of reference in the beginning as under:
In the case of insurance company not taking any higher liability by accepting a higher premium for payment of compensation to a third party, the insurer would be liable to the extent limited under Section 95 (2) of the Act and would not be liable to pay the entire amount.
13. Faced with this situation, Mr. Dogra relied on the decision in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC) and urged that liability of the appellant is unlimited. This submission cannot be accepted. In this case, it is observed in para 9:
(9) Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be overemphasised.
In the face of the above observations made by the Apex Court, plea urged on behalf of the claimants as well as owner is hereby rejected.
14. In view of the aforesaid discussion, before parting with this case, we may observe that with a view to satisfy ourselves, Indian Motor Tariff was requisitioned from the appellant which Mr. Kapoor produced and to which a reference has been made hereinabove.
15. So far cross-objections for enhancement of compensation filed by respondent Nos. 1 to 6 are concerned, those are not maintainable in the appeal of the appellant insurance company. For taking this view reliance is being placed on a number of Division Bench decisions which are, namely, New India Assurance Co. Ltd. v. Kehro Devi 1997 ACJ 623 (HP); Krishan Dutt v. Premi Devi 1998 ACJ 706 (HP); National Insurance Co. Ltd. v. Lalita Prabhakar 1998 ACJ 1124 (HP); New India Assurance Co. Ltd. v. Seema Bhup 1998 ACJ 1147 (HP); United India Insurance Co. Ltd. v. Ganga Ram 2000 ACJ 115 (HP); National Insurance Co. Ltd. v. Beena Kumari 2000 ACJ 584 (HP). Besides these decisions other High Courts have also taken similar view. [See United India Insurance Co. Ltd. v. Rajammal 1993 ACJ 486 (Madras); New India Assurance Co. Ltd. v. Kunhiraman Nambiar 1994 ACJ 1019 (Kerala); National Insurance Co. Ltd. v. Rameshwarss 1995 ACJ 1114 (Allahabad)]. Accordingly, the cross-objections are liable to be rejected. No other point is urged.
16. In view of the aforesaid discussion, while rejecting the cross-objections, the appeal is allowed and it is held that the appellant is liable to pay Rs. 1,50,000 with interest as ordered by the learned Tribunal below and balance amount of Rs. 12,000 along with interest as awarded by Tribunal is payable by Gurnam Chand, respondent who is the owner-cum-driver of the truck in question. It is further ordered that a copy of this order be sent to the G.M.D. of National Insurance Co. Ltd., Registered Office, 3 Middleton Street, Calcutta-700 071, for information. No costs.
