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2007 Supreme(Bom) 1063
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
N.V. DABHOLKAR AND M.G. GAIKWAD, JJ.
M/s Oriental Insurance Co. Ltd., APPELLANT/ORIG.
VERSUS
Smt. Aruna w/o Chhagan Kalamkar RESPONDENTS/ORIG.
FIRST APPEAL NO. 879 OF 2002
Decided on : 4th August, 2007
Advocate Appeared
Shri V.N. Upadhaye, advocate for the appellant.
Shri S.S. Ladda, advocate holding for Shri S.G.
Ladda, advocate for respondents No. 1 and 2.
Mrs. M.B. Gangwal, advocate for respondents No.
3 and 4.
Headnote:Motor Vehicles Act, 1988 - Sections 147, 168, 156-Liability owner and driver-Whether the provisions of Indian Motor Tariff can be considered to find out liability of insurance company on basis of additional premium-Liability of insurance company was restricted to one lakh-In view of additional premium-Held-Owner and driver would be liable to pay additional amount of compensation.
Motor Vehicles Act, 1988 - Sections 156 and 166-Liability of insurance company.-Tribunal awarded compensation of Rs. 32,65,000/- with interest @ 9%. Appeal preferred against by insurance company. Contention, that its liability is limited. Further, passenger is gratuitous. Age of claimant not considered while determining multiplier. It was held that liability found restricted to rupees one lac as policy found to have covered limited liability.
Motor Vehicles Rules, 1989 - Form 51-Liability of insurance company.-In application for claim, Tribunal awarded Rs. 32,65,000 with interest @ 9%. Feeling aggrieved from order appeal preferred by insurance company contending, that its liability is limited. Deceased was gratuitous passenger and while applying multiplier, age of claimant not considered. It was held that policy found to have covered limited liability. Liability found restricted to rupees one lac.
Motor Vehicles Act, 1939 - Section 95 - Motor Vehicles Act, 1988, Section 147 - Liability of insurer - Statutory liability - Not more than what is required under statute itself - Section 95 of Act not prohibits parties to create unlimited liability to cover wider risk. - It is observed that a statutory liability cannot be more than what is required under the Statute itself. However, there is nothing in Section 95 which prohibits the parties to create unlimited or higher liability to cover wider risk.
Motor Vehicles Act, 1988 - Section 156 - Central Motor Vehicles Rules, 1989, Form 51 - Insurance certificate - Issuance of by insurer - Insurer deemed to have issued a policy in insurance conforming in all respects stated in certificate of insurance - So long as policy issued by insurer. - The certificate of insurance is produced before the Tribunal at Exhibit-50. On perusal of this certificate, it appears that this certificate is issued in Form No. 51 of the Central Motor Vehicles Rules, 1989. Section 156 of the Motor Vehicles Act, 1988 specifies the effect of certificate of insurance and in terms of sub-section (a) of Section 156, when an insurer issues a certificate of insurance, the insurer shall be deemed to have issued to the insured person a policy of insurance conforming in all respects with the description and particulars stated in such a certificate so long as the policy described in the certificate has not been issued by the insurer to the insured. In terms of sub-section (b) of Section 156, if the insurer has issued to the insured the policy described in the certificate, but the actual terms of the policy are less favourable to persons claiming under or by virtue of the policy against the insurer either directly or through the insured than the particulars of the policy as stated in the certificate, the policy shall, as between the insurer and any other person except the insured, be deemed to be in terms conforming in all respects with the particulars stated in the said certificate.
These provisions under Section 156 are the deeming provisions that the policy issued is in conformity with the terms incorporated in the certificate. There is no dispute that the vehicle in question in the present case was insured. The insurer as well as insured did not produce on record the original policy. Hence, as per the provisions of Section 156, it shall be deemed that the policy issued is as per terms and conditions incorporated in this certificate of insurance (Exhibit-50).
Muslim Women (Protection of Rights on Divorce) Act, 1986 - Section 156 - Central Motor Vehicles Rules, 1989, Form 51 - Insurance certificate - Issuance of by insurer - Insurer deemed to have issued a policy in insurance conforming in all respects stated in certificate of insurance - So long as policy issued by insurer. - The certificate of insurance is produced before the Tribunal at Exhibit-50. On perusal of this certificate, it appears that this certificate is issued in Form No. 51 of the Central Motor Vehicles Rules, 1989. Section 156 of the Motor Vehicles Act, 1988 specifies the effect of certificate of insurance, and in terms of sub-section (a) of Section 156, when an insurer issues a certificate of insurance, the insurer shall be deemed to have issued to the insured person a policy of insurance conforming in all respects with the description and particulars stated in such a certificate so long as the policy described in the certificate has not been issued by the insurer to the insured. In terms of sub-section (b) of Section 156, if the insurer has issued to the insured the policy described in the certificate, but the actual terms of the policy are less favourable to persons claiming under or by virtue of the policy against the insurer either directly or through the insured than the particulars of the policy as stated in the certificate, the policy shall, as between the insurer and any other person except the insured, be deemed to be in terms conforming in all respects with the particulars stated in the said certificate.
These provisions under Section 156 are the deeming provisions that the policy issued is in conformity with the terms incorporated in the certificate. There is no dispute that the vehicle in question in the present case was insured. The insurer as well as insured did not produce on record the original policy. Hence, as per the provisions of Section 156, it shall be deemed that the policy issued is as per terms and conditions incorporated in this certificate of insurance (Exhibit-50).
1. Heard learned counsel, appearing on behalf of respective parties.
2. The Insurance Company/original respondent No. 2 in Motor Accident Claims Petition No. 428/1997 preferred the present appeal challenging the award dated 21-06-2002, passed by the learned Member, Motor Accident Claims Tribunal, Aurangabad, granting compensation of an amount of Rs. 32,65,000/- to the claimants with future interest at the rate of 9 per cent per annum.
3. Respondents No. 1 and 2, the mother and sister of deceased Swapnil @ Pappu Kalamkar filed Motor Accident Claims Petition (MACP) No. 428/1997 under section 166 of the Motor Vehicles Act, and claimed compensation of an amount of Rs. 90,00,000/- on account of death of deceased Swapnil occurred in an accident took place on 22-05-1996 on Jalna-Aurangabad road. Deceased Swapnil was travelling in a car bearing Car No. MP-09/N-4519. Respondent No. 1 in the petition was driving the said car. The car was owned by respondent No. 3. It was insured with the respondent No. 2 (present appellant) under Policy No. 1500/000/06036/31/96/03257. The car was coming towards Aurangabad. At a distance of 20 to 25 kilometres from Aurangabad, the car was dashed to one neem tree near Primary Health Centre at Karmad, resulting in instantaneous death of deceased Swapnil on the spot. Another occupant in the car by name Sharad sustained severe injuries and died after a couple of months. After this accident, Crime No. 1-45 of 1996 under section 304-A, 337 and 427 of the Indian Penal Code came to be registered in Karmad Police Station. At the time of this accident, deceased Swapnil was twenty six years old. He was engaged in the business of plying luxury buses and tankers. He was a commerce graduate. His monthly earning was Rs. 26,000/-. His longevity was alleged to be upto seventy years of age and on all these counts, the claimants preferred the claim for an amount of Rs. 90,00,000/-. The respondent No. 4, the father of the deceased was joined as respondent in the claim petition; however, he died during the pendency of petition.
4. Respondent No.1, the driver did not contest the claim petition; however, respondent No. 2 - Insurance Company (present appellant) and respondent No.3, the owner of the car contested the petition before the learned M.A.C. Tribunal. Respondent No.3, the owner of the car admitted his ownership as well as deceased Swapnil travelling in his car, which, at the time of accident, was driven by respondent No.1. Admitting all the contentions including the age and income of the deceased, the respondent No. 3 came with a defence that the car being insured with the respondent No.2, respondent No.2 - the Insurance Company is liable to pay entire amount of compensation.
. The Insurance Company (present appellant) came with a defence that the deceased was one of the passengers in the car involved in the accident which car was insured with them. According to them, the claim was settled on payment of rupees one lac to the claimants. The Insurance Company denied the income of the deceased as claimed by them, and according to them, his monthly income was Rs. 4000/- to Rs. 6000/-. The written statement came to be amended and a contention was raised that the status of the deceased who was travelling in the car cannot be termed to be a third party, but he was a gratuitous passenger. Hence, for the risk of such a passenger, the Insurance Company is not liable. The claim petition against the Insurance Company is liable to be dismissed. 5. Both the parties led evidence before the M.A.C. Tribunal. Both the claimants were examined in support of their respective contentions and they did produce the documents i.e. certificate of Insurance at Exhibit-50, copies of FIR and spot panchanama and the copies of Income Tax Returns of the deceased (Exhibits-56 and 57). On behalf of the present appellant - Insurance Company,
