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2010 Supreme(Raj) 517
2010(2) CCR 968 (P.&H.)
(Punjab and Haryana High Court)
Chandigarh Bench
New India Assurance Co. Vs. Smt. Chameli Devi (Gupta, J.)
HON'BLE MUKUL MUDGAL, CJ.
HON'BLE JASBIR SINGH, J.
HON'BLE HEMANT GUPTA, J.
New India Assurance Co. Ltd.
Versus
Smt. Chameli Devi & Ors.
F.A.O. No. 410 of 1988, decided on 07.05.2010
L.M. Suri, Senior Advocate, with Neeraj Khanna, for Appellant;
Pritam Saini, for Respondents
Headnote:(a) Motor Vehicles Act, 1939, Secs. 95(2)(b) & 110-B — Limited or unlimited liability of Insurance company — Reference to Larger Bench — Comprehensive Insurance policy — Liability in respect of passenger — Plea of limited liability to the extent of Rs. 15,000/- per passenger — Difference between policy produced by owner of vehicle and insurance company — Finding of tribunal that insurance company is liable to indemnify the owner for entire liability — Held — Mere fact that insured has taken comprehensive policy, does not lead to an inference that the insurance company is liable to indemnify the insured of the entire awarded amount including the amount in excess of the statutory liability of insurer depends on the terms of contract between parties contained in the policy. (Paras 19 & 20)
¼d½ eksVj ;ku vf/kfu;e] 1939] /kkjk;sa 95¼2½¼[k½ ,oa 110-[k & chek daiuh dk lhfer ;k vlhfer nkf;Ro & o`gn ihB dks funsZ'k & O;kid chek ikWfylh & ;k=h ds laca/k esa nkf;Ro & 15]000@- #i;s ds foLrkj rd izfr ;k=h lhfer nkf;Ro dk vfHkokd~ & okgu ds ekfyd ,oa chek daiuh }kjk izLrqr ikWfylh ds chp vUrj vf/kdj.k dk fu"d"kZ fd chek daiuh dk nkf;Ro ekfyd dk lEiw.kZ nkf;Ro {kfriwfrZ djus dk gS & vfHkfu/kkZfjr & flQZ rF; fd chfer us O;kid ikWfylh fy;k] bafxr ugha djrk fd chek daiuh chfer dks dkuwuh nkf;Ro ls vf/kd jkf'k ds lkFk lEiw.kZ vf/kfuf.kZr jkf'k {kfriwfrZ djus gsrq nk;h gS & chek drkZ dk nkf;Ro ikWfylh esa varfoZ"V i{kdkjksa ds chp lafonk dh 'krksZ ij fuHkZj djrk gSA ¼in la[;k 19 ,oa 20½
rnuqlkj funsZ'k dk mRrj fn;kA
(b) Motor Vehicles Act, 1939, Sec. 95 — Limited or unlimited liability — Burden of proof — Held — Burden of proof depends upon pleading of the parties — Burden of proof of the assertion of its limited liability is on the insurance company — Burden of proof can be also on the owner, if he asserted that liability of the insurance company is unlimited.
(Paras 21 to 23)
¼[k½ eksVj ;ku vf/kfu;e] 1939] /kkjk 95 & lhfer ;k vlhfer nkf;Ro & lkfcr djus dk Hkkj & vihy & vfHkfu/kkZfjr & lkfcr djus dk Hkkj i{kdkjksa ds vfHkopuksa ij fuHkZj djrk gS & vius lhfer nkf;Ro ds izk[;ku dks lkfcr djus dk Hkkj chek daiuh ij gS & lkfcr djus dk Hkkj Lokeh ij Hkh gks ldrk gS ;fn og izk[;ku djrk gS] fd chek daiuh dk nkf;Ro vlhfer gSA
¼in la[;k 21 ls 23½
(c) Motor Vehicles Act, 1939, Secs. 93(d) & 95 — Limited or unlimited liability — Held — The expression of third party will include in its ambit the passengers travelling in motor vehicle, pedestrian on the road or a person travelling in another vehicle — Insurance company would be liable to indemnify the insured to the extent of Rs. 15,000/- per passenger on proof of insurance policy in this respect — Insurance company has failed to prove the insurance policy, restricting its liability therefore, liability is unlimited. (Paras 27 to 29)
¼x½ eksVj ;ku vf/kfu;e] 1939] /kkjk;sa 93¼?k½ ,oa 95 & lhfer ;k vlhfer nkf;Ro & vfHkfu/kkZfjr & r`rh; i{kdkj dh vfHkO;fDr eksVj okgu esa ;k=k dj jgs ;kf=;ksa] lM+d ij iSny pyus okys ;k vU; okgu esa ;k=k djus okys O;fDr;ksa dks vius ifjf/k ds vUrxZr j[ksxk & chek daiuh chfer dks chek ikWfylh ds lkfcr gksus ij izfr ;k=h 15]000@- #i;s ds foLrkj rd bl laca/k esa {kfriwfrZ djus gsrq nk;h gksxk & chek daiuh vius nkf;Ro dks fucZfU/kr djrs gq, chek ikWfylh lkfcr djus esa vlQy jgk vr% nkf;Ro vlhfer gSA ¼in la[;k 27 ls 29½
vihy [kkfjt dhA
2. The said order passed by the Division Bench reads as under:-
“The main case taken up on urgent motion.
It is contended by Mr. Suri that the words “such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939”, occurring in the insurance policy intend to cover the provisions of Section 95(2) of the Motor Vehicles Act, 1939 and since sub-clause (b) thereof would apply to the instant case, the liability of the insurance company was upto Rs.15,000/- for each individual passenger. Reliance has been placed on a Division Bench judgment of this Court in Pt. Ram Parkash and others vs. Smt. Kanta Suri and another, 1987(2) FIR 169, where this provision came to be specifically interpreted and a decision of the Rajasthan High Court in Chand Kanwar vs. Manaram, 1986 ACJ 269 was distinguished.
The term in the insurance policy being comprehensive enough would come to meet the requirements of any other provision of the Motor Vehicles Act as well. It is noticeable that Chapter VIII of the said Act covering insurance of Motor Vehicles against thirty party risk has in it not only Section 95 but Section 110-B as well and under Section 110-B the power of the claims tribunal to award compensation is not curtailed in any manner. We are prima facie of the view that the aforequoted entry in the insurance policy is wide enough to bring within its ambit such liability as may be required to be met under Section 110-B of the Act.
Admitted F.B.”
3. The present reference arises as a Division Bench of this Court in Pt. Ram Parkash’s case (supra) has taken a view that the Insurance Company has limited liability in respect of the passenger of a motor vehicle. The correctness of the said judgment was doubted by the Division Bench of this Court in the order mentioned above, primarily on the basis of the decision of the Rajasthan High Court in Chand Kanwar’s case (supra), that since the policy issued by the Insurance Company is comprehensive, it is to meet the requirement of any other provisions of the Motor Vehicles Act as well. Therefore, the Insurance Company is liability to indemnify the insured of the entire liability. Before we examine the respective contentions of the parties, the brief facts from FAO No. 410 of 1988 out of which the said Reference has arisen, need be stated.
4. A private bus bearing registration No. RSO 2850 owned by one Shashi Kant Gupta met with an accident on 19.4.1986 at about 7.00 a.m. in the area of village Gadhauli, Police Station Chhappar, District Yamuna Nagar (Haryana). Many passengers died while other received multiple injuries. As many as 28 claim applications were preferred to claim compensation either by the legal heirs on account of death of the passengers or by the injured in respect of the injuries received in the said motor vehicular accident. The owner of the bus denied that there was any negligence of the driver in causing the accident, whereas the Insurance Company, the present appellant, raised a plea that its liability is limited to the extent of Rs.15,000/- per passenger.
5. The learned Tribunal found that the accident had taken place due to negligence of the bus driver. It also found that the liability of the Insurance Company is not limited as there is difference between the Insurance Policy produced by the owner of the vehicle and that by the Insurance Company and there is no limit mentioned against the heading `limits of liability’. Even in the Endorsement IMT-13, the columns have been left blank. Thus, the Tribunal found that the Insurance Company is liability to indemnify the owner of the entire liability.
6. A Constitution Bench of the Ho
