IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. **
S.B.CIVIL MISC. APPEAL NO.1093/1998
(New India Assurance Co. Vs. Smt.Prem Lata and ors.)
Date of Judgment : 23-07-2009
HON’BLE MR.JUSTICE GUMAN SINGH
Mr.Anirudh Singh & Mr.Brijesh Dhabhai for Mr.Virendra Agrawal, for the appellant-Ins.Com.
Mrs.Sumati Vishnoi, for the respondent-claimants.
Heard learned counsel for the parties.
2. This appeal has been preferred on behalf of New India Assurance Company Limited challenging the judgment passed by the learned Motor Accident Claims Tribunal, Ajmer vide judgment dated 20.8.1998 whereby a total sum of Rs.4,68,000/- was awarded for the death of deceased Puranmal caused in the accident.
3. The learned counsel for the appellant-Ins.Company submitted that the Insurance Company had insured the offending vehicle which was a goods vehicle and for that liability of Insurance Company was limited to Rs.1,50,000/- under Sec.95 of the Motor Vehicles Act, 1939. It is also submitted that though under the relevant schedule of premiums for Motor Insurance as per India Motor Tariffs, the premium for ‘Act only liability’ was fixed to Rs.200/- while liability for the ‘public risk’ was fixed at Rs.240/- and in this case, a premium of Rs.240/- was charged but in view of decision of Hon’ble Apex Court in National Insurance Co. Ltd Vs. Kesha Bahadur and others-2005 ACJ,211, liability of insurer should be held to be limited even where premium of RS.240/- was received by the Insurance Company. It is also submitted that the amount of compensation awarded in the case is on higher side as the Tribunal has assessed the income of the deceased on higher side amounting to be Rs.3400/- per month and after deducting Rs.1,000/- as against own expenses, a sum of Rs.2400/- has been taken to be the amount of monthly dependency for computing the compensation. Thus it was submitted that the claimant-appellants have failed to establish as to what was the definite income of the deceased as no documentary evidence has been produced in this regard.
4. Per contra, learned counsel for the respondents-claimants supported the judgment of the Tribunal and submitted that the learned Tribunal has taken into consideration evidence adduced during inquiry and has awarded adequate compensation and calls for no interference. As regards the question of limited liability, it was urged that the Tribunal has considered this aspect in detail and in view of the fact that a payment of Rs.240/- was paid by way of premium towards liability to the public risks, which was higher than the premium for Act only liability, the insurer was rightly held liable for unlimited liability. The learned counsel has placed reliance upon the judgment of Division Bench of this court reported in 2006(1) WLC(Raj.)-National Insurance Co.Ltd. Vs. Hastimal Lodha and 5 others, and also the other earlier judgment of the Division Bench reported in National Insurance Co. Ltd Vs. Laxmi and ors.-2005 ACJ,211 in support of his contention.
5. Having heard rival contentions, and on going through the award as also record of the case, it is revealed that the accident had taken place on 9.1.88 when the deceased was driving car RPA-5757 and was going from Jodhpur to Jaipur and the accident took place at Noreli Bye-pass when he was hit by offending vehicle-truck RSM-1972 coming from opposite direction, resulting into his death. As regards the argument of learned counsel for the appellant-Ins.Company pertaining to the limited liability under Sec.95 of the Motor Vehicles Act, 1939, it may be noted that on the Insurance Cover Note issued by Insurance Company, a premium of Rs.240/- has been charged for liability to public risk. As per India Motor Tariffs, prevailant at the relevant time, a sum of Rs.200/- was required to be charged for ‘Act only Liability’ while for ‘Liability to the public risks’, sum of Rs.240/- was to be charged. This aspect of the matter has been dealt with by the Division Bench of this court in Hastimal Lodha’s case (supra) while dealing the schedule as well as other terms of the India Motor Tariffs and had an occasion to consider the earlier Judgment of Division Bench in National Ins. Co. Ltd. Vs. Laxmi and ors. (2005 ACJ,211) (supra) as well as the ratio indicated by the Apex Court in Keshav Bahadur’s case (supra) and it was concluded that where the insurance Company has charged additional premium for public risk, its liability towards third party risk was unlimited, as under:
7. In National Insurance Company Ltd. Vs. Laxmi (supra), the Tribunal awarded sum of Rs.1,04,000/- as compensation to the claimants and the Insurance Company was held liable to indemnify the owner of the vehicle for the entire sum under the policy. The Insurance company appealed before the High Court for limiting its liability to Rs.50,000/-, the statutory liability fixed under 1939 Act. After the High Court dismissed the appeal, the matter was taken to Supreme Court from where the matter was remanded to the Tribunal with the direction to hold an inquiry as regards the liability of the Insurance Company. After framing additional issue and considering the material the Tribunal found that premium for the ‘act only policy’ was Rs.200/- and the premium charged from the vehicle owner was Rs.240/- which was captioned ‘liability to public risk Act only’ which under the insurance jargon considered as ‘Third party risk policy’ by charging higher than the ‘Act only policy’ and on that premise, it came to the public risk and its liability towards ‘Third party risk’ was unlimited and the insurance company was liable for the entire claim. The award of the Tribunal was assailed in appeal before the Single Bench of the High Court which was dismissed. The Division Bench considered the terms of policy and held as under:
Therefore, in our opinion, under policy the appellant specifically undertook unlimited liability to indemnify the insured towards the Third party by not excluding the liability if the insured in respect of claims arising out of death or bodily injury caused to the third party. Therefore, the Motor Accident Claims Tribunal and learned Single Judge were right in their conclusion.
8. In Keshav Bahadur’s case (supra), the Apex Court indicated thus- In case of insurer-appellant not taking any higher liability by accepting higher premium, the liability is neither unlimited nor higher than the statutory liability fixed under section 95(2) of the Act. Even if a vehicle is the subject matter of comprehensive insurance and a higher premium is paid on that score, limits of the liability with regard to third party risk does not become unlimited or higher beyond the statutory liability fixed. For this purpose, a specific agreement has to be arrived at between the insured and the insurer and separate premium has to be paid in respect of additional amount of liability undertaken by the insurer in that regard.
6. In view of the position settled herein above, it is revealed that in the instant matter higher premium of Rs.240/- was charged for ‘liability to the public risk’ as against a lower premium of Rs.200/- for ‘Act only liability’ under the relevant second schedule of India Motor Tariff applicable from 1.6.85 and thus liability of Insurance Company was unlimited and thus there is no illegality or perversity in the findings of the Tribunal on the point and calls for no interference. As regards the quantum of compensation, it is revealed from the evidence specially from the statement of AW-2 Mohan Lal that deceased was engaged in purchase and sale of ‘Neroluc Paints’ and was earning Rs.3000/- per month. The monthly earning of the deceased is also disclosed in the claim petition itself along with additional earning of Rs.500/- per month from other occupation. But in view of evidence adduced, no documentary evidence has been produced in support of income from additional occupation. Thus the income assessed as Rs.3400/- by the Tribunal appears to be on higher side and same deserves to be scaled down to Rs.3000/- and the amount deserves to be computed without disturbing the unit criteria adopted by the Tribunal for deduction as against the expenses of deceased himself, and the amount can be computed as under:
Rs.2142.85x12x13(multiplier)=3,34,285/-.
7. Accordingly, appeal of the appellant-Ins.Company is partly allowed and the Award passed by the learned Tribunal is modified to the extent that the claimants shall get a sum of Rs.3,34,285/- instead of Rs.4,68,000/- and rest of the terms of award shall remain unchanged. Record be sent back forthwith. The appeal stands disposed of accordingly.
(GUMAN SINGH),J.
Sandeep/-
item no.h/14