The main legal point established in the judgment is that the liability of the insurance company in respect of persons other than passengers is limited to Rs. 50,000 under Section 95(2)(b)(i) of the Motor Vehicles Act, 1939, based on the interpretation of the premium paid and absence of evidence of payment of additional premium to cover unlimited or higher liability.

JUDGMENT :

BIVAS PATTANAYAK, J.

1. This appeal is preferred against the judgment and award dated 30th May 2017 passed by learned Judge, Motor Accident Claims Tribunal, Bench IX, City Civil Court, Calcutta in MAC Case No. 212 of 1987 granting compensation of Rs. 3,98,000/- together with interest in favour of the claimants under Section 110A of the Motor Vehicles Act, 1939.

2. The brief fact of the case is that on 9th January, 1987 at about 21:15 Hours while the victim along with one Pawan Kumar Bajoria was on a stationary scooter bearing No. WNH-60 on the western side of the non-metalled portion of the Red Road at that time the offending vehicle bearing registration no. WBS-4872 (Private Bus) in a rash and negligent manner dashed the said scooter at the southern end of Mohammedan Sporting Club Tent, as a result of which the victim and Pawan Kumar Bajoria sustained serious injuries and immediately they were shifted to Medical College Hospital, where the attending doctor declared them as brought dead. On account of sudden demise of the victim, the claimants being the widow, mother and son filed application for compensation of Rs. 5,50,000/- together with interest under Section 110A of the Motor Vehicles Act, 1939.

3. The claimants in order to establish their case examined two witnesses including the widow of the deceased and produced documents which have been marked as Exhibits 1 to 6 respectively.

4. The appellant-insurance company keenly contested the claim application by filing its written statement. However, it did not adduce any evidence.

5. Since service of notice could not be affected upon the owner of the offending vehicle, upon prayer of the claimants, summons was directed by the learned Tribunal to be served through substituted service. The notice was served through substituted service which was accepted by the learned Tribunal. However, the owner of the offending vehicle failed to appear.

6. Despite service of notice of appeal upon the respondent no. 4-owner of the offending vehicle through publication, the said respondent remained unrepresented.

7. Upon considering the materials on record and the evidence adduced on behalf of the claimants the learned Tribunal granted compensation of Rs. 3,98,000/- together with interest in favour of the claimants under Section 110A of the Motor Vehicles Act, 1939.

8. Being aggrieved by and dissatisfied with the impugned judgment and award of the learned Tribunal the insurance company has preferred the present appeal.

9. Mr. Rajesh Singh, learned advocate for appellant-insurance company submitted that in terms of Section 95(2)(b)(i) of the Motor Vehicles Act, 1939 the liability of the insurance company in respect of the persons other than passengers is limited to Rs. 50,000/- only and since the deceased-victim was not a passenger the insurer had no legal liability to pay any amount more than Rs. 50,000/-. He further submitted that without any additional or higher premium being taken to cover unlimited or higher liability than the statutory liability fixed, the liability of the insurer in respect of persons other than the passengers is limited to Rs. 50,000/- only and therefore the responsibility of payment of any amount over and above Rs. 50,000/- was solely of the owner of the offending bus and not of its insurer. Though the learned Tribunal accepted the argument of limited liability of the insurance company but failed to decide the said issue and erroneously directed the insurer to make payment of the total compensation awarded. To buttress his contention, he relied on the decision of Hon’ble Supreme Court passed in New India Assurance Co. Ltd. vs. C.M. Jaya and Others, (2002) 2 SCC 278. In the present appeal in terms of order dated 2nd January 2020, the insurance company, by way of supplementary affidavit, filed a copy of policy of insurance of another vehicle, as similar to the insurance policy pertaining to the present case, issued in respect of a third party coverage at the relevant point