JUDGMENT
K.C. Sharma, J.
1. Through this appeal under Section 173 of Motor Vehicles Act, 1988, the appellants seek to modify the award dated 6.11.1993 passed by learned Judge, Motor Accidents Claims Tribunal, Jaipur City, Jaipur whereby the learned Judge has awarded a sum of Rs. 1,63,500 under different heads.
2. On 14.6.1988 at 9.45 p.m., when Daljeet Singh was on way at M.I. Road, Jaipur, a minibus bearing No. RND 0285 hit him. It was alleged that the driver was driving the bus rashly and negligently and with excessive speed. As a result of this accident, Daljeet Singh sustained serious injuries and ultimately he succumbed to his injuries. It was stated that at the time of accident the age of deceased was 38 years and was posted as driver in Rajasthan Agriculture Marketing Board.
3. Learned Tribunal having concluded that the accident occurred as a result of contributory negligence of deceased and the driver of said minibus awarded compensation to the tune of Rs. 3,27,000 and since the accident took place as a result of contributory negligence, the Tribunal deducted 50 per cent of the award amount, that is, Rs. 1,63,500, thereby making the claimants entitled to get compensation to the tune of Rs. 1,63,500. It further appears that the Tribunal has made the insurance company liable to pay the compensation only to the extent of Rs. 50,000.
4. Learned Counsel appearing for the appellants has challenged the impugned award on two grounds. The first ground of challenge is that Tribunal has committed serious error in recording a finding that the accident was a result of contributory negligence of deceased and driver of minibus. I find substance in the submission of learned Counsel. A perusal of the site plan, Exh. 2, shows that the road where accident took place was 60 ft wide and in between the road, there was divider. The place where deceased was going on was 7 ft away from corner of the road and still 23 ft wide road was available for plying the minibus. In the position stated above, the minibus dashed the deceased from back side. In these circumstances the contributory negligence of the deceased cannot be held to be proved. The Tribunal in my considered view has committed error in deducting 50 per cent of the compensation calculated by it. It must, therefore, be held that the claimants are entitled to receive the total amount of compensation, i.e., for Rs. 3,27,000.
5. The second ground of challenge is that the Tribunal has erred in fixing the liability of the respondent insurance company only to the extent of Rs. 50,000 by holding it to be the statutory liability fixed under the Act of 1939. Learned Counsel submitted that the liability of the insurance company was unlimited and the insurance company was liable to meet out all third party liability claims and that the insurance company cannot avoid the liability to pay the entire award amount to the claimants. In support of his argument, learned Counsel has relied upon two decisions of the Division Bench of this Court: (i) National Insurance Co. Ltd. v. Laxmi and (ii) National Insurance Co. Ltd. v. Hastimal Lodha D.B. Special Appeal (Civil) No. 3 of 1998; decided on 5.12.2005 (Rajasthan).
6. There is no dispute about the finding recorded by the Tribunal that the premium charged by the insurance company was in excess of ‘Act only policy’ and was under heading B ‘Liability to Public Risk’, which was indicated at Rs. 240. The principle, which is well settled from the catena of decisions of the Apex Court, is that merely charging of higher premium or even taking a comprehensive policy does not necessarily cover the third party risk to the unlimited extent unless terms of the policy so provide for.
7. In National Insurance Co. Ltd. v. Laxmi , the Division Bench of this Court having quoted the terms of liability as mentioned in the insurance policy observed:
(20) … A perusal of the aforesaid terms show that under principal clause, the insurance company accepted its liability towards third party injuries co-extensive with legal liability of the owner of the vehicle. By providing various clauses under provisos it limited its liability to Act only liability in respect of matters covered by one or other of the provisos. Under none of the provisos the limit of liability towards bodily injury or death caused to a third party has been restricted to statutory liability though liability to indemnify passengers has been limited to statutory liability. So also liability towards employees has been also limited to the extent provided under Workmen’s Compensation Act.
Ultimately, the Division Bench held as under:
(21) No exception has been made to restricting liability undertaken by the insurance company to the extent the insured will become legally liable to pay in respect of death or bodily injury to third party caused by or arising out of use. 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 of the insured in respect of claims arising out of death or bodily injury caused to the third party. Therefore, the Motor Accidents Claims Tribunal as well as learned single Judge were right in their conclusion. The liability of insurance company on demand of additional premium was unlimited towards third party under the terms of the policy.
8. In the instant case, the terms of liability are exactly similar to that of the terms of liability in Laxmi’s case, 2005 ACJ 211 (Rajasthan). In the case at hand also the terms of liability indicates that under principal clause, the insurance company has accepted its liability towards third party injuries co-extensive with legal liability of the owner of vehicle. It further reflects that by providing various clauses under provisos it limited its liability to Act only liability in respect of matters covered by one or other of the provisos. Under none of the provisos limit of liability towards bodily injury or death caused to a third party has been restricted to statutory liability though liability to indemnify passengers has been limited to statutory liability. In the circumstances, therefore, the present case is fully covered by the aforesaid decision of the Division Bench. Accordingly, it must be held that the insurance company is liable for the entire claim.
9. In the result, this appeal is partly allowed. The impugned award of the Tribunal is modified to the extent that the claimants are entitled to receive the entire amount of compensation, i.e., Rs. 3,2.7,000 as has been calculated by the Tribunal and that the insurance company is liable to make payment of the entire amount of compensation. The respondent Board is directed to deposit the remaining amount of award, i.e., Rs. 1,63,500 with the Tribunal within two months from the date of this order. The claimants shall be entitled to get interest at the rate of 6 per cent per annum on this amount from the date of application till realisation. On depositing the aforesaid amount, the Tribunal shall disburse the same amongst the claimants.