The Oriental Fire and General Insurance Company Limited (now known as The Oriental Insurance Company Ltd.) Vs Smt. Shakuntala Garg and others

@JUDGMENTTAG-ORDER

Anil Dev Singh, J.@mdashAdmit.

2. This is an appeal by the insurance company against the judgment and order of the learned single Judge dated 24th February, 2000 whereby the compensation in the sum of Rs. 60,868/- awarded by the Motor Accident Claims Tribunal, (for short the ''Tribunal''), Delhi by its order dated 30th April, 1980 in the favor of the heirs of the deceased respondent nos.1 to 4 was enhanced to sum of Rs. 3,84,000/-. The learned single Judge also directed payment of interest on the aforesaid sum at the rate of 125 from the date of the filing of the claim petition till the date of payment of the compensation instead of payment of interest at the rate of 6% awarded by the Tribunal. The facts giving rise to the instant appeal are as follows:-

The respondents are the legal heirs of the deceased, Sh. G.D. Garg, who died in an accident caused by truck No. DLL-5127. the accident took place on 8th October, 1971 at about 2.15 P.M. on the Ring Road near defense Colony. Respondent nos.1 to 4 filed a claim petition before the Tribunal. The Tribunal came to the conclusion that the accident resulted from rash and negligent driving of the driver of truck no.DLL 5127. The Tribunal awarded a sum of Rs. 60,868/- to respondents nos. 1 to 4. The claimants finding the compensation awarded by the Tribunal to be inadequate filed an appeal, being FAO No. 352/1980. The insurance company not lagging behind also field an appeal being FAO.No.353/1980. Both the appeals were disposed of by the learned single Judge on 24th February, 2000.

3. The learned single Judge was of the opinion that the dependency of the claimants on the deceased which was fixed at Rs. 682/- per month was not rightly determined. The learned single Judge was of the view that the dependency of the claimants ought to have been fixed at Rs. 2,000/- per month. The learned single Judge adopted a multiplier of 16 keeping in view the various factors including the age of the deceased, who was 35 years old at the time of his death. Thus on the aforesaid basis the learned single Judge awarded an amount of Rs. 3,84,000/- as the compensation in favor of the claimants. The learned single Judge also awarded a sum of Rs. 50,000/- to the claimants on account of the marriage expenses of the eldest daughter of the deceased and directed the insurer to pay the entire compensation to the claimants. The insurance company feeling aggrieved by the order of the learned single judge has come up before us by way of the instant Letter Patent Appeal.

4. Mr. Chaudhary, learned senior counsel appearing for the insurance company has fairly conceded that the insurance company is not entitled to question the quantum of compensation awarded by the learned single Judge in view of Section 96(2) of the Motor Vehicles Act, 1988 (for short the ''Act''). The only argument advanced by Mr. Chaudhary is that the liability of the insurance company was limited by the policy of insurance. He has invited our attention to the certified copy of the policy. It may be noted the Tribunal found that the policy was snot proved by the insurance company. In this regard the Tribunal observed as follows:-

"31. In so far as the liability of respondent no.3 Insurance Company is concerned, it was contended on their behalf that the maximum liability of the Insurance Co. was limited as per provisions of the Motor Vehicles Act and Insurance Policy, and they have placed on the record the alleged certified copy of the Insurance policy of the vehicle in question being marked ''X''. The same has not been got proved legally by producing the original policy or the official record. My attention has been drawn to Oriental Fire and General Insurance Company Ltd. Vs. Surinder Kumar and Others, in which it was held as under:

Section 79- Presumption- Genuineness of certified copies- Original copy not produced but a certified copy of it was field in the court- Held no presumption as to genuineness of certified copy can be raised because Insurance Company is a statutory person.

In view of the ratio of the above ruling I hold that no Insurance Policy has been filed on the record to indicate the liability of the Insurance Company.

33. The learned counsel for the petitioners has drawn my attention to Shyam Lal and Others Vs. The New India Assurance Co. Ltd. and Another, in which it was held as under:

Section 96 of the Motor Vehicles Act only lays down the statutory requirements abut the policy and it doe snot prohibit covering of risk of a higher amount. The respondent no.1 admitted in its written statement that the said bus H.P.B. 6250 was insured with it on the date of the accident. It was also alleged in the written statement by the respondent no.1 that according to the terms and conditions of the policy the limit of passengers to the carried by bus was only 44 while it was carrying 63 passengers at the time of the accident and, Therefore, the insurance co. was not liable for any compensation. It was also stated as if it was question of law that the liability of an insurance company is only limited to Rs. 2,000/- in respect of each passenger. it was no pleaded that according to the terms of conditions of the policy by which the bus was insured the liability of the insurance company was limited to Rs. 2,000/- per passenger. The policy has not been produced. In the circumstances the insurance company is also liable for the full amount awarded for compensation to the claimants.

34. Applying the ratio of the above ruling, as I have held above that the Insurance Policy which has been tendered on the record and marked ''X'' has not been got proved either on the basis of the original record in possession of the Insurance Co. or on the basis of the original policy in the possession of the owner, the same cannot be read in evidence which amounts to non-production of the policy.

35. There is one mor patent absurdity in the alleged copy of the Insurance Company marked ''X''. In it the liability of the Insurance Company has been shown to be Rs. 20,000/- by scoring the printed figure of Rs. 50,000/-. In the face of the admission of respondent no.3 in their written statement it cannot be disputed that the vehicle in question was insured with respondent no.3 on the material date i.e. 8.10.71. The statutory liability of the Insurance Company as a result of the amendment which came into force on 2nd March, 1970, the liability was enhanced from Rs. 20,000/- to Rs. 50,000/-. It is not disputed that the deceased met the tryst with destiny on 8.10.71. it is thus obvious that the respondent Insurance Company could not be any stretch of reasoning insure the vehicle in question for an amount lesser than what has been statutorily fixed under the Motor Vehicles Act. This is yet another reason to ignore the alleged Insurance Policy on record.

36. On 28.4.1980 an application was moved on behalf of respondent no 3. bringing to the notice of the court that no orders were passed on their application dated 12.11.76 for directing respondents 1 and 2 to produce the original Policy of Insurance. Apart from, it will be pertinent to note here that initially Shri S.M. Suri was representing as counsel for all the respondents as is evidenced from the written statements filed by all the respondents. Thus there should not have been any difficulty on the part of the learned counsel for the respondents to have placed on the record the original Insurance Policy of the vehicle in question. The record further reveals that by a detailed order dated 27.9.76 my learned predecessor in office had closed the evidence of respondents 1 and 2 and had fixed the case for arguments for 29.10.76. By the same order respondent no.3, Insurance company was allowed to produce the Insurance policy pertaining to the offending vehicle. According on 29.10.76, RW-3 Sh. Brij Mohan Kumar, Superintendent of the Insurance Co. produced the certified true copy of the Policy of Insurance and the same was marked as ''X'' fro the obvious reason that the original official record inclusive of proposal form which was the basis of the contract was not produced and as such the said document could not have been legally exhibited."

5. Even though the policy of insurance was not proved, Mr. Chaudhary, learned senior counsel, banked upon the same and submitted that the liability of the insurance company towards third party was limited. he drew our attention to the orders of the Supreme Court in New India Assurance Company v. C.M. Jaya, (1999) 2 SCC 47 . In that case the Supreme Court noticed that there was a conflict between two judgment of the Supreme court namely, New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, and Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, with regard to the question whether or not in a case of insurance policy not undertaking any higher liability to pay compensation to a third party beyond the limit provided by Section 95(2) of the Act, the insurer would be liable to pay the entire sum awarded as compensation to the claimant even when, the sum is in excess of the limited provided in the said Section. In view of the conflict, the Supreme Court referred the aforesaid question relating to the liability of the insurance company to a larger Bench.

6. In a subsequent decision, in the case of Oriental Insurance Co. Ltd. Vs. Cheruvakkara Nafeessu and Others, , the Supreme Court while taking note of the aforesaid two conflicting decisions required the insurance company, in the firs instance to pay the compensation awarded to the heirs of the victim and permitted it to recover the amount paid by it in excess of its liability provided for in Section 95(2) of the Act from the insured. it seems to us that in the first instance, in view of the decision of the Supreme Court in Oriental Insurance Co. Ltd. vs. Cheruvakkara Nefeessu (supra), the insurance company will be liable to pay the entire sum of compensation to the heirs of the victim.

7. It s pertinent to note that the accident took place as far back as in the year 1971. About three decades have gone by and the amount of compensation awarded in favor of the legal heirs of the victim are still locked up on the legal battle which is being waged by the insurance company. The fight has been prolonged by the appeals filed by the insurance company. the insurance company in the first instance ought to have paid the entire compensation awarded in favor of the heirs of the victim and in case it thought its liability was limited to the extent provided by Section 95(2) of the Act it could file proceedings u/s 174 of the Act against the owner and driver of the offending vehicle to recover the excess amount paid, if any, to the heirs. The insurance company, Therefore, must first comply with the judgment of the learned single Judge by paying the amount determined by the learned single Judge as compensation to respondents 1 to 4 and subsequently, in case it is so advised, file proceedings against the owner and driver for recovery of the excess amount, if any, paid by it.

8. In the facts and circumstances of the case, we are of the opinion that the learned single Judge was entirely right in directing the insurer to pay the entire sum of Rs. 3,84,000/-, as compensation, along with interest at the rate of 12% to respondent Nos. 1 to 4. The appeal, Therefore, fails and is hereby dismissed with costs which are quantified at Rs. 10,000/-.