JUDGMENT
S.B. Sinha, J.
1. The question which arises for consideration In this appeal is as to whether the appellant can maintain this appeal.
2. In view of the question Involved it is not necessary to state the fact of the matter in details, suffice it to state that an application was filed by the respondent herein In terms of section 110A of the Motor Vehicles Act, 1939 in respect of the death of one Pradip Saha claiming compensation amounting to Rs.10 lakhs.
3. Before learned Tribunal below although the appellant appeared and allegedly filed the office copy of the policy of Insurance but no witness was examined on its behalf nor the said policy was marked as an exhibit. The learned Tribunal below by Its award allowed the claim of the respondent to the tune of Rs.4,85,000/-.
4. Mr. Das, the learned counsel, appearing on behalf of the appellant, submitted that as the victim was a passenger of Bus, the liability of the appellant was limited In terms of section 95 of the said Act. The learned counsel submitted that keeping in view a conflict in the decisions of three Division Benches of the apex Court In National Insurance Co. Ltd., New Delhi v. Jugal Kishore & Ors. . New India Assurance Co. v. Shanttdebi reported In and Amritlal Sood v. Kaushalya Devi Thapar reported In , the matter has been referred to a larger Bench, in New India Assurance Co. v. CM. Jaya and others reported In 1999 AIR SCW 2554.
5. Mr. Banik, the learned counsel appearing on behalf of the respondent, on the other hand, relied upon a large number of decisions for the purpose of showing that the said submission should not be accepted by this Court.
6. It is now a well settled principles of law that the right of appeal of an Insurance Company is limited. In Untied India Insurance Co. Ltd. v. Smt. Sipra Brahma & Anr. reported In 1997 AIHC 4316 a Division Bench of this Court has extensively dealt with the matter. This bench has also considered the aforementioned matter In F.M.A. No. 1760 of 1997 (National Insurance Co. Ltd. v. Sudhangsu Paul & Ors.) disposed of on 23.9.1999 wherein reliance has been placed on Commissioner of Income-tax. Madras v. Madras Auto Service (P) Ltd. reported in AIR 1998 SC 2967 and Narendra Kumar & Anr. v. Yarenissa & Ors. .
7. The appeal is, therefore, not maintainable as regard the quantum of
compensation.
8. It may be true that the Insurance Policy has been filed but the same had not been proved. From the Judgment passed by the learned Tribunal below, it is evident that neither any witness was examined on behalf of the Opposite Parties nor the issues raised herein were pressed. Before us also no application has been filed by the appellant herein to take the aforementioned Insurance Policy in evidence by filling an application In terms of Order 41 Rule 27 of the Code of Civil Procedure. In absence of the Insurance Policy having been brought on records, this Court is not In a position to examine as to whether there exists any stipulation that the limit of the liability of the appellant was restricted to Rs.1,50,000/- only. Had the appellant raised any defence in clear terms that its liability was limited, it ought to have brought the said Insurance Policy on records so as to enable the appellant to lead evidence contra. Mere filing of a document is not enough nor the same can be looked Into by the Court unless It Is proved in accordance with law.
9. This aspect of the matter has been considered by a Division Bench of this Court of which one of us (S.B. Sinha. J.) was a member in M/s. National Insurance Co. Ltd. v. Smt. Basanti Bagchi and Anr. reported In 1997 AIHC 4303 wherein this Court took note of the decision In Shantidebi (supra) and distinguished it on the ground that therein the High Court allowed additional evidence to be adduced subject to a condition that the entire amount shall have to be paid by the Insurance Company. In that case the said contention was held to be unreasonable. This Court held :–
“Admittedly no argument was advanced before the learned Tribunal below. As indicated hereinbefore, even no question was put to the witnesses as regard alleged limited liability of the appellant. The appellant did not examine any witness. Before the learned Tribunal Judge It took only two points as would appear from the trend of the cross-examination which were not available to It In view of section 96(2) of the Motor Vehicles Act.
Sub-section (4) of section 96 of the Motor Vehicles Act cannot be held to mean that even the insurers can ignore Us statutory liability.
Section 96 of the Act dealts with the obligation of the insurer for which a vehicle must be insured and other Indicated matters. The liability of the Insurer is to Indemnify the insured. Prior to 1939 Act, victim of an accident had no Independent claim against the Insurance. Such was the position in England also prior to coming into force of the Road Traffic Act. Section 96 of the Act is a substantive provision which deals the liability of the Insurer to pay to the claimant directly.”
10. This Court also noticed a decision of Jeevan Reddy, J. (as His Lordship then was) in National Insurance Company Ltd. v. Sm. Tarak Bala Das reported in AIR 1978 AP 90 wherein it was held that in terms of section 96(4) of the said Act the Insurer would be entitled to recover from the insured the additional amount paid by the appellant.
11. It was further noticed :-
“In New Assitic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani, reported In , the apex Court held :-
“Thus, the contract between the Insurer and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties. In view of the provisions of the Act, we are of the opinion that once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties’ right to recover any amount under or by virtue of the provisions of the Act Is not affected by any condition In the policy. Considering this aspect of the terms of the policy, It is reasonable to conclude that proviso (a) of para 3 of section 11 Is a mere condition affecting the rights of the insurer who effected the policy and the persons to whom the cover of the policy was extended by the company, and does not come in the way of third parties’ claim against the company on account of its claim against a person specified in para 3 as one to whom cover of the policy was extended’.
However, the said decision was distinguished in British Indian General Insurance Co. Ltd.. Bombay v. Smt. Maya Banerjee reported In wherein also despite a finding that the Insurer’s liability was only to the extent of Rs.20,000/- the apex Court refused to Interfere with the directions directing payment of the entire amount of Rs.30,000/-.
The aforementioned decision, therefore, is also a pointer to show that In a given case the Court may refuse to exercise Its discretion.”
12. This Court further held that the Insurance Company being a State, It should comply with the directive principles of State Policy as envisaged in part-IV of the Constitution of India. The Court observed :-
“This Court is not only a Court of law but also a Court of justice. It at this stage the appeal Is allowed irretrievable injury would be caused to the first respondent who has not been able to receive a single farthing despite the fact that she lost her son in August, 1981. The learned Accident Claim Tribunal has also merely awarded interest at the rate of 6 per cent per annum. On the other hand, the appellant company which has its resources may purpose its right as against the owner of the vehicle In terms of sub-section (4) of section 96 of the Motor Vehicles Act. In this situation we are of the opinion that the interest of Justice demands that no interference is made In the appeal with liberty to the appellant to pursue its remedies in terms of sub-section (4) of section 96 of the Motor Vehicles Act.”
13. The same view has been taken recently by a Division Bench of this Court in New India Assurance Company v. Smt. Lima Jhunjhunwals & Ors. reported in Cal. LT 1999 (2) HC 563.
14. It is true that the matter has since been referred to a larger bench but so long the matter Is not decided by a larger Bench, the earlier decision of the apex Court Is binding on this Court. In National Insurance Co. Ltd. v. Jugal Kishore and Ors. reported in 1988 A.C.J 270, the apex Court clearly held that where a defence as regards the limited liability to be taken by the Insurance Company, the Insurance Policy should be brought on records. However. In that case the genuineness of the photostat copy of the Policy filed before the apex Court was not questioned. Furthermore, the apex Court directed the Insurance Company to deposit Rs.1 lakhs whereafter, special
leave was granted on condition that In the event of reversal decision of the High Court, said amount shall not be refunded to the claimants.
15. It may be noticed that the Insurance Company before filing its written statement have also paid a sum of Rs.50,000/- In terms of section 92A of the Motor Vehicles Act without raising the said defence.
16. In New India Assurance Co. Ltd, v. Mohinder Kaur & Ors, reported in 1989 ACJ 343, the Rajasthan High Court has held when no evidence was led to show that the liability of the insurers was limited as per statute, the Insurance Company was liable to full extent of the award. It was also its duly to produce before the learned Tribunal below the tariff prevalent at the time of accident keeping in view the fact that the Policy was a comprehensive one and, thus, the tariff vis-a-vis the carrying capacity of the vehicle was a relevant factor.
17. As Indicated hereinbefore, the decision in Shatidebi (supra) has been distinguished In Basanti Bagchi (supra), whereby the point at Issue is also covered.
18. In Amrit Lal Sood & Anr. v. Kaushalya Devi Thapor & Ors, . (he apex Court relied upon National Insurance Co. Ltd. v. Jugal Kishore and New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani and held :–
“In the policy in the present case also, there is a clause under the heading: “Avoidence of Certain Terms and Right of Recovery” which reads thus :–
‘Nothing in this policy or any endorsement hereon shall effect the right of any person Indemnified by this policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act, 1939, section 96. But the insurer shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the said provisions’.
The above clause does not enable the Insurance company to resist or avoid the claim made by the claimant. The clause will arise for consideration only In a dispute between the insurer and the insured. The question whether under the said clause the insurer can claim repayment from the insured is left open. The circumstance that the owner of the vehicle did not file an appeal against the judgment of the Single Judge of the High Court under the letters patent may also be relevant in the event of a claim by the insurance company against the insured for repayment of the amount. We are not concerned with that question here.”
19. This Court, thus, is bound by the earlier decisions of the apex Court as also the Division Bench decisions of this Court. Reference in this connection may be made to Aarti Gupta and Ors. v. State of Punjab & Ors. and Union of India v. Raghubir Singh
20. In Sundarjas Kanyalal Bhathija & Ors. v. The Collector, Thane, Maharashtra & Ors. , It has been held:-
“It would be difficult for us to appreciate the judgment of the High Court One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there Is no declared principle to be found, no rule and no authority. The Judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate Jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of Judicial process not to follow this procedure.”
21. The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decisions of a Court. Speaking for the Constitution Bench (Union of India v. Raghubir Singh learned Chief Justice said (at p.766) (of SCC) : at p. 1939 of AIR :
The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the Individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle In the decisions of a Court’.
22. Cardozo propounded a similar thought with more emphasis :
‘I am not to mar the symmetry of the legal structure by the Introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly by some consideration of history or custom or policy of justice. Lacking such a reason, I must be logical just as I must be Impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another’ (The Nature of the Judicial Process by Benjamin N. Cardozo P.33).’
In our system of judicial review which is a part of our Constitutional scheme, we hold It to be the duty of Judges of superior courts and tribunals to make the law more predictable. The question of law directly arising In the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour, it must be determined with reasons which carry convictions within the Court, profession and public. Otherwise, the lawyers would be In a predicament and would not know how to advise their clients. Subordinate Courts would find themselves In an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute.”
For the reasons aforementioned, we do not find any merit in this appeal which is accordingly dismissed but In the facts and circumstances of this case there will be no order as to costs.
M.H.S. Ansari, J.
23. I agree.
24. Appeal dismissed