National Insurance Company Ltd. vs Smt. Kamla Kanwar And Ors. on 9 July, 2001

Rajasthan High Court
National Insurance Company Ltd. vs Smt. Kamla Kanwar And Ors. on 9 July, 2001
Equivalent citations: 2002 ACJ 1394
Author: Panwar
Bench: H Panwar


JUDGMENT

Panwar, J.

1. This appeal is directed against the judgment and award dt. 21st August, 1991 passed by Motor Accident Claims Tribunal, Udaipur (hereinafter referred to as ‘the Tribunal’), whereby the Tribunal awarded compensation of Rs. 1,50,000/- in favour of the respondent-claimants (hereinafter referred to as ‘the claimants’) and against the appellant.

2. The brief facts of the case which are necessary for disposal of the appeal are that; on 19.5.1987 at about 9.00 am., deceased Abhey Singh driver of auto rickshaw No.RRY 2062 was proceeding from the road leading to Fateh High School, Udaipur, at that relevant time, a bus No. RJY 4703 came from opposite direction which was driven rashly and negligently by driver respondent No. 5 Devi Lal, hit the auto rickshaw. Due to this accident, the driver of auto rickshaw Abhey Singh and other passengers of auto rickshaw viz. Ram Singh and Roop Singh sustained server injuries and Abhey Singh succumbed to injuries. The legal representatives of deceased Abhey Singh filed a claim petition before the learned Tribunal claiming compensation of Rs. 4,30,000/- against the driver Devi Lal respondent No. 2, owner Mohan Lal and the appellant insurer.

3. On notice, the appellant insurer and owner of the vehicle involved in accident filed their respective written statements. Tribunal framed as many as four issues and by impugned judgment and award, granted compensation of Rs. 1,50,000/- in favour of the claimants and held the appellant insurer liable to pay the entire amount of award.

4. Aggrieved by the impugned awarded, appellant insurer has filed this appeal assailing its limits of liability. As regards finding of rash and negligence as also the quantum of compensation awarded by the Tribunal has not been challenged by either of the parlies and as such it became final. The only grievance of the appellant insurer is that the accident in question took place on 19.5.1987 and on that day, the limit of liability of the insurer is to the extent of Rs. 50,000/-. Whereas, in the instant case, the Tribunal has awarded Rs. 1,50,000/- and held the appellant insurer liable for entire amount. He contended that the learned Tribunal fell in error in fastening the entire liability against the insurer. He contended that at the relevant time, the provisions of Motor Vehicles Act, 1939 since repealed was applicable. As per Section 95(2)(b)(i), the appellant insurer is liable to the extent of Rs. 50,000/-. He contended that vehicle involved in accident was a vehicle in which passengers are carried for hire or reward or by reason or in pursuance of a contract of employment and as per Section 95(2)(b)(i), the liability in respect of persons other than passengers carried for hire or reward, the limit is of Rs. 50,000/- in all.

5. The learned counsel for the appellant filed an application under Order 41 Rule 27 C.P.C. along with the true copy of insurance policy in respect of Bus No. RJY 4703 for the period in question and prayed that the additional evidence be allowed to be produced on record of the appellant court. In the application under Order 41 Rule 27 C.P.C., no valid and substantial reason for not producing this document before the Tribunal has been assigned as envisaged under Order 41, Rule 27 C.P.C. However, learned counsel contended that the copy of insurance policy has already been filed before the Tribunal, though, not tendered in evidence and, therefore, he contended that this being public document, can be read in evidence.

6. I have perused the copy of the insurance policy filed by the appellant insurer alongwith the application under Order 41 Rule 27 C.P.C. before this Court and an original copy (C9730) and carbon copy (C9732) which were filed by the appellant before the Tribunal. Normally original policy should be with the insured (owner of vehicle) and not with insurer. Thus, it is not clear as to how appellant insurer could file both original and its carbon copy that too issued on 17.2.1988 covering period from 9.10.1986 to 8.10.1987. According to the provision of Insurance Act, the premium is required to be paid in advance and not after the expiry of period for which insurance cover is taken.

7. Learned counsel for the claimants Shri Kawadia seriously disputed the genuineness of these documents. He contended that true copy of policy filed before
this Court and copies placed before the Tribunal have been manipulated by the appellant insurer. The true and correct record of the insurance has neither been produced before the Tribunal neither before this Court. He further contended that period of insurance cover is shown to be from 9.10.1986 to 8.10.1987, whereas, the true copy filed along with application under Order 41 Rule 27 C.P.C. before this Court shows that date of issuance of document as 17th February, 1988. The carbon copy produced before the Tribunal also shows that date of issuance of document as 17th February, 1988. In this view of matter, he submits that policy covering period for 1986-87 could not have been issued after expiry of period of one year i.e. on 17.2.1988. He also contended that in the copy filed before this Court, there is interpolation in the number of vehicle as also various amount mentioned therein and, therefore, according to him these documents are not free from suspicion and cannot be taken as additional evidence at this stage.

8. I have perused Ihe true copy of the insurance policy filed by the appellant before this Court and certificate of policy produced by the appellant before the Tribunal. In these documents, date of issuance of policy is 17.2.1988. The counsel for the appellant insurer before the Tribunal filed the certificate of insurance in original on 8.3.1989 (C9/30) and a carbon copy of the certificate of insurance which is carbon copy of original (C9/30) on 19.11.1990.

9. Learned counsel for the respondents contended that alleged certificate of insurance and the insurance policy produced before this Court are not the genuine documents and, therefore, they cannot be permitted to be taken on record as additional evidence before the appellant court. He further contended that Tribunal has framed issue No.3 on the basis of objection/pleas raised by the appellant insurer and burden to prove the issue No. 3 was on the appellant insurer. The appellant insurer has not led any evidence before the Tribunal in order to prove this issue. Undisputedly, the appellant has not led any evidence before the Tribunal and the Tribunal has rightly decided the issue No. 3 holding Ihe appellant insurer liable.

10. Learned Tribunal framed Ihe issue No.3 on the pleadings of the appellant insurer and Ihe burden to prove this issue was on the shoulders of the appellant insurer.

11. I have considered the rival submissions made by the counsel for the parties. Perused the document placed on record, genuineness of which is seriously disputed by respondents. The appellant has not made out any of the grounds as envisaged in Order 41 Rule 27 C.P.C. for taking additional evidence on record. In the instant case, appellant insurer has not placed before the Tribunal relevant record relating to the contract of insurance, premium charged, proposal form, cover note, docket etc. It is primary duty of the appellant insurer to place on record all material before the Tribunal, so that Tribunal could have come to correct conclusion with regard to the contract of insurance. The appellant has neither placed the relevant record before the Tribunal nor before this Court and the alleged copy which is sought to be placed on record cannot be said to be genuine for the reason that the date of issuance is 17.2.1988. Perhaps it appears that in order to make foundation of limited liability, these documents are prepared by the insurer and placed on record of the Tribunal and filed now before this Court. In the State of U.P. v. Manbodhan Lal Srivastava (1), the Supreme Court has held as under:-

“It is well settled that additional evidence should not be permilted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties.”

12. Under these circumstances, the application filed under Order 41 Rule 27 C.P.C. is not sustainable and is rejected. The documents filed along with the above application cannot be taken on record and be read in evidence.

13. In the instant case, undisputedly the appellant insurer has not led any evidence with regard to limit of its liability and therefore, in absence of evidence, it cannot be said that the liability of insurance company is limited. I have taken similar view in Dalu Ram and Ors. v. Lukman and Ors. (2), which has been affirmed by the Division Bench of this Court in D.B. Civil Special Appeal No. 49/2001 decided on 29.5.2001.

14. In case of Smt. Ronak Begum and Ors. v. Jorasingh and Ors. (3), this Court has held as under:-

“The burden of proof that the liability is limited to the extent provided in Section 95 of the Motor Vehicles Act, 1939 lies on the insurer. Thus, in order to discharge this burden, the Insurance Company was bound to produce the carbon copy or the photostat copy of the original of the insurance policy. In case, the Whotostat copy or carbon copy of the original of the insurance policy is not available with the Insurance Company, it may produce the relevant record of the policy like Receipt Book of the Premium, Proposal form, cover note etc. As stated above, in the instant case, the Insurance Company has failed to prove the insurance policy or any of the above record. The insurance policy produced by it is neither a carbon copy nor photostat copy of its original and hence, it cannot be considered as a relevant document.”

15. In National Insurance Company Ltd. and Ors. v. Laxmi and Ors. (4), Hon’ble Division Bench of this Court has also taken similar view and their Lordship held as
under:-

“Before the learned Single Judge, the Insurance Company has filed true copies of insurance policy being No. DCV 12671 and CVS 876902 which is not even signed by any person. The originals have not been filed and only true attested copy has been field. It is settled law that true copy cannot be taken as primary evidence. Prayer for acceptance of the same was made. In this view of the matter, Learned Single Judge is justified in rejecting the appeal filed by the Insurance Company.”

16. Learned counsel for the appellant has contended that even if the true copy of policy is not admitted as additional evidence, then also, the liability of the appellant can be ascertained with the amount of premium received by the appellant. It is contended that the appellant has charged and received premium of Rs. 240/- under the head “liability to public risk” and according to the learned counsel, the liability would not have been more than Rs. 50,000/-.

17. Undisputedly, the vehicle involved in the said accident is a commercial vehicle and the tariff of the premium provided by the appellant is as follows:-

COMMERCIAL VEHICLES TARIFF
SCHEDULE OF PREMIUMS

Class-B(1) : Passenger Carrying Vehicles – (Excluding Passenger Risk)

(a) Buses (including Tourist Buses)

(b) Hotel/School Omni Buses

(c) Airline Buses.

Maximum Licensed Pas-own Damage
sender carrying capacity

Liability to the Act only

Public Risks

Liability

Not exceeding

18 Seats

Rs. 280 + 1.10% on IEV

Rs. 240

Rs. 200

Not exceeding

36 Seats

Rs. 360 + 1.10% on IEV

Rs. 240

Rs. 200

Not exceeding

60 Seats

Rs. 440 + 1.10% on IEV

Rs. 240

Rs. 200

Exceeding

60 Seats

Rs. 545 + 1.80% on IEV

Rs. 240

Rs. 200

18. From the aforesaid tariff, it is more than clear that the ordinary payment for “act only liability” the tariff provided is Rs. 200/- for covering the risk, Act only liability as provided under the Motor Vehicles Act, 1939 Admittedly, the appellant has charged Rs. 240/- as premium. Thus, Rs. 40/- was charged as extra amount by the appellant covering the liability of the death of bodily injury to third party beyond the limit provided in the Act. In my considered opinion, the liability of Insurance Company would not be limited to as per the “Act Only” but would be liability to the public risk to the extent of unlimited. This point come up for consideration before this Court in. National Insurance Company v. Smt. Rukmani Devi and Ors. (5), and other two connected special appeals decided on 26.11.1998, wherein this Court has held as under:-

“It was found by the Court that the premium paid to the Insurance Company for liability to the public risk was Rs. 240/-. The ordinary payment for “Act only” liability is Rs. 200/- for covering the said risk. Thus, the Insurance Company was paid extra premium for the liability to the public risk and the only inference which can be drawn that Rs. 40/- were charged extra for covering the liability of death and bodily injury of the third party accepting the unlimited liability in respect to the death and bodily injury of the third party.”

19. In another case, New India Assurance v. Hari Kishan and Ors. (6), and other connected special appeal, another Division Bench of this Court vide its judgment dt. 15.5.1998 has again held as under:-

“Where a sum of Rs. 240/- has been charged by the Insurance Company, to cover the third party liability, which premium is more than the “Act only” premium of Rs. 200/-, the liability of the Insurance Company would not be as per the “Act only” policy, but would be unlimited.”

20. Similar view has also been taken by this Court in Navyug Oil & Dall Mills v. Smt. Nathi Devi and Ors. (7). Thus, in view of the aforesaid view taken by the Division Bench of this Court. In the instant case, according to the learned counsel for tbe Insurance Company, Rs. 240/- has been charged by which the liability of Insurance Company becomes unlimited. In this view of the matter also, the liability of Insurance Company cannot be said to be limited to Rs. 50,000/- only.

21. In view of the aforesaid discussion, in my considered opinion, the appellant
insurer has failed to prove by cogent evidence the limits of their liability and accordingly, I do not find any error in the judgment and award passed by the learned Tribunal.

There is not merit in this appeal and accordingly, it is dismissed. No. order as to costs.

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