Full Judgment Text
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PETITIONER:
NATIONAL INSURANCE CO. LTD.
Vs.
RESPONDENT:
NATHILAL & ORS.
DATE OF JUDGMENT: 15/12/1998
BENCH:
K. Venkataswami and A.P. Misra.,
JUDGMENT:
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VENKATASWAMI, J.
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This appeal is preferred by the appellant Insurance
company against the judgment and order dated 10.12.1993 of
the Rajasthan High Court in Civil Misc. Appeal No. 394/93.
Brief facts are the following:
Respondents 1 and 2 filed a Claim Petition under
Section 110-A of the Motor Vehicles Act, 1939 claiming
damages in a sum of Rs. 6,50,000/- for the death of their
son, Akhilesh Kumar, aged about 22 years. The deceased
Akhilesh Kumar was travelling in a Jeep bearing No.
RST-1286 along with three other adults and two children from
Jaipur to Sawai Madhopur when the accident took place on
4th/5th May, 1998 at about 1.15 a.m. Before the Motor
Accident Claims Tribunal (for short ’Tribunal’) the
appellant took a stand that its liability was restricted to
a sum of Rs. 15,000/- under the Policy. The said stand of
the appellant was not accepted by the Tribunal and by its
Award dated 27.2.93 it held that the liability of the
appellant was unlimited and awarded a compensation in a sum
of Rs.2,44,000/- with interest at the rate of 12% per annum.
Aggrieved by the Award of the Tribunal, in
particular, the finding that the Insurance Company’s
liability was unlimited, the appellant-Insurance Company
preferred an appeal to the Rajasthan High Court.
The High Court affirmed the view taken by the
Tribunal and the present appeal against the order of the
High Court has been filed by special leave.
The only ground, which weighed with the Tribunal as
well as with the High Court, that one column was left blank
in the Insurance Policy and, therefore, the case of the
Insurance Company was that its liability was limited, cannot
be accepted.
A perusal of the Insurance Policy, which has been
exhibited through the witness examined on behalf of the
Insurance Company, clearly shows that the Policy was in
respect of seven passengers and one driver. The premium
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under Part-B of Schedule of Premium paid as against the
seven passengers at Rs. 12/- per passenger was shown as Rs.
84/- and an additional sum of Rs. 8/- for the driver. In
addition to this, a premium of Rs. 180/- was paid towards
liability to public risk. As against unlimited liability to
column, no premium was paid as is evident from the Policy.
The mere fact that the column against unlimited liability
was not filled, will not automatically lead to the inference
that the liability was unlimited in the absence of any
special premium paid towards that claim.
This Court in National Insurance Co. Limited, New
Delhi vs. Judgal Kishore & Ors. (AIR 1988 SC 719) while
considering a similar case, held as follows:-
"We have accordingly perused the photostat copy of
the Policy to ascertain whether risk for any amount
higher than the amount of Rs. 20,000/- contemplated
by C1.(b) aforesaid was covered. Our attention was
invited by learned counsel for the respondents to
the circumstance that at the right hand corner on
the top of page 1 of the Policy the words
"COMMERCIAL VEHICLE COMPRE-HENSIVE" were printed.
On this basis and on the basis that the premium paid
was higher then the premium of an "act only" policy
it was urged by the learned counsel for the
respondents that the liability of the appellant was
unlimited and not confined to Rs. 20,000/- only.
We find it difficult to accept this submission.
Even though it is not permissible to use a vehicle
unless it is covered at least under an "act only"
policy it is not obligatory for the owner of a
vehicle to get it comprehensively insured. In case
however, it is got comprehensively issued a higher
premium than for an "act only" policy is payable
depending on the estimated value of the vehicle.
Such insurance entitles the owner to claim
reimbursement of the entire amount of loss or damage
suffered up to the estimated value of the Vehicle
calculated according to the rules and regulations
framed in this behalf. Comprehensive insurance of
the vehicle and payment of higher premium on this
score, however, do not mean that the limit of the
liability fixed under sub-sec. (2) of S.95 of the
Act. For this purpose a specific agreement has to be
arrived at between the owner and the insurance
company and separate premium has to be paid on the
amount of liability undertaken by the insurance
company in this behalf. Likewise, if risk of any
other nature for instance, with regard to the driver
or passengers etc. in excess of statutory liability,
if any, is sought to be covered it has to be clearly
specified in the Policy and separate premium paid
therefor.
(Emphasis supplied)
In the light of the above ratio laid down by this
Court and in view of the fact that no extra premium was paid
towards unlimited liability as is clear from the Policy
produced before the Tribunal, the judgment and order of the
Tribunal affirmed by the High Court cannot be sustained and
are, accordingly, set aside. The liability of the Insurance
Company is limited to Rs. 15,000/-. The Award of the
Tribunal will accordingly stand modified insofar as the
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liability of the appellant-Insurance Company is concerned.
This Court by an order dated 24.10.94, while
granting interim stay, directed the appellant-Insurance
Company to deposit the entire Award money in the Tribunal.
It further permitted the claimant to withdraw a sum of Rs.
50,000/- out such deposit. The balance amount was directed
to be invested in a Long Term Deposit in a scheduled bank.
The appellant-Insurance Company is permitted to withdraw the
amount in deposit with accrued interest in view of its
success in this appeal. The amount paid to the claimant,
pursuant to the order of the Court, shall not be recovered
from the claimant but the appellant can recover that amount
from the owner of the vehicle.
The appeal is, accordingly, allowed with no order as
to costs.