Posted On by &filed under High Court, Patna High Court.


Patna High Court
New India Assurance Company Ltd. vs Zakir Bano Siddiqui And Ors. on 8 August, 2000
Equivalent citations: II (2003) ACC 227
Author: M Eqbal
Bench: M Eqbal


JUDGMENT

M.Y. Eqbal, J.

1. Heard Mr. Alok Lal, learned Counsel for the appellant and learned Counsel for the respondents.

2. This appeal is directed against the judgment and award dated 3.7.1999 passed by the 1st Additional Motor Accident Claims Tribunal, Jamshedpur, awarding a sum of Rs. 2,96,800/- as compensation for the death of one G.M. Khan in a motor vehicle accident.

3. The facts of the case lie in a narrow compass. On 15.12.1986 the deceased was going on road on his scooter. A truck bearing registration No. BRW 8931 loaded with coal knocked down the deceased as a result of which he sustained serious injuries. At the time of accident, truck was insured with the appellant Insurance Company. The widow and other legal representatives filed an application under Section 110-A of the Motor Vehicles Act which was registered as MJ-No. 28 of 1987. The owner of the vehicle appeared and filed his written statement stating, inter alia, that the vehicle was insured with the appellant Insurance Company and, therefore, in any event the Insurance Company is liable to pay the compensation. In the written statement, the owner of the vehicle disclosed the description of the policy which was effective on the date of the accident. The Insurance Company appeared and filed the written statement stating, inter alia, that although the vehicle was insured but under the policy of insurance the liability of the Insurance Company was limited to the extent as provided under Section 95 of the Motor Vehicles Act. The Tribunal framed the following issues for consideration.

(i) Whether the claim case as framed is maintainable?

(ii) Whether the applicants have got cause of action and the right to sue?

(iii) Whether the claim application is barred under the provisions of Motor Vehicles Act?

(iv) Whether the accident as alleged in the claim application took place due to rash and negligent driving of the driver OP No. 2 of the truck No. BRW 8931, or whether the deceased was himself negligent in driving his scooter at the time of accident?

(v) Whether the applicants are entitled to get the compensation as claimed by them? If so, to what extent and against which of the O.Ps.?

(vi) Whether the applicants are entitled to any relief or reliefs?

4. While deciding issue No. (v) with regard to quantum, the Claims Tribunal came to the conclusion that a total sum of Rs. 2,96,800/- would be just compensation. The Claims Tribunal further held that since the Insurance Company did not dispute the insurance of the vehicle on the date of the accident, so it shall be held liable for payment of the compensation jointly and severally. The Claims Tribunal, therefore, directed the Insurance Company to pay the entire amount of compensation.

5. Mr. Alok Lal, the learned Counsel, firstly, submitted that the Tribunal neither framed any issue nor came to any finding with regard to liability of the Insurance Company. Learned Counsel submitted that the vehicle was insured under the third party risk and, therefore, liability of the Insurance Company cannot and shall not exceed Rs. 1,50,000/- which is the statutory liability of the Insurance Company. From perusal of the judgment it does not appear that the Insurance Company pressed this issue with regard to its liability for payment of compensation. From the judgment it appears that the Insurance Company admitted the insurance of the vehicle. It is well settled that if the Insurance Company wants to take the plea about the limited liability, onus lay upon it to produce and prove the insurance policy and to satisfy the Court that its liability is limited. It is also well settled that if the Insurance Company fails to produce and prove the insurance policy and satisfy the Court about its liability, then it shall be held liable for payment of entire compensation.

6. In the case of National Insurance Co. Ltd. v. Jugal Kishore I (1988) ACC 327 : 1988 ACJ 270 (SC), the Supreme Court observed:

(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 appellants 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 done so at the appropriate stage the 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 over-emphasized.

7. In the case of Oriental Fire & Genl. Ins. Co. Ltd. v. Barun Kumar Pandey 1989 ACJ 697 (Patna), a Bench of this Court held that when the Insurance Company fails to produce a copy of the policy it is estopped and precluded from raising the defence that its liability was limited to the statutory liability in terms of Section 95 of the Motor Vehicles Act.

8. As noticed above, the owner of the vehicle in his written statement has given the full description of the policy but the Insurance Company did not choose to produce and prove even copy of the insurance policy before the Tribunal and that is why Tribunal had no option but to saddle the Insurance Company with all the liability.

9. Mr. Alok Lal, learned Counsel, drew my attention to an application filed in this case under Order 41 Rule 27 of the Code of Civil Procedure, annexing a xerox copy of the policy to show that the liability of the Insurance Company was limited to the extent of Rs. 1,50,000/-. From perusal of the copy of the insurance policy, it appears that it is a photocopy of the first page (which is called schedule of the policy) in which liability of the Insurance Company was shown as Rs. 50,000/-. It cannot be accepted that in 1986 the liability of the Insurance Company was only Rs. 50,000/- when by virtue of amendment of Section 95 of the Act liability was increased to Rs. 1,50,000/-.

10. Be that as it may, the application filed under Order 41 Rule 27 allowing to produce the insurance policy as an additional evidence cannot and shall not be allowed for the reason that even before this Court the appellant has not annexed complete copy of the insurance policy along with the application to show the extent of the liability of the Insurance Company. If the Insurance Company fails to conduct the cases properly before the Tribunal and allow the Tribunal to award compensation against it then at the appellate stage the appellant Insurance Company cannot be allowed to lead additional evidence in order to disown its liability or to shift the liability to the owner of the vehicle, which will result in depriving the victim from getting compensation at the earliest. If the Insurance Company pays compensation in excess of its liability then it has a right to recover the excess amount of compensation paid by it from the owner of the vehicle. In no case, the claimant should be allowed to suffer because of laches and negligence of the Insurance Company in not putting their defence properly before the Tribunal.

11. Having regard to the entire facts and circumstances of the case, I do not find any merit in this appeal, which is accordingly dismissed.


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