Case: Oriental Insurance Co. Ltd Vs. Bhoop Singh & Others

1. Oriental Insurance Co. Ltd. has challenged the order passed by the High Court in which direction is issued to the appellant to pay the entire compensation to the injured. It holds that the policy was comprehensive with no limitation to the third party. The submission on behalf of the appellant is that its statutory liability is limited to the extent of Rs 50,000 and any finding over and above that is to be set aside. 2. The appellant issued insurance policy, the Commercial Vehicle (Comprehensive) Policy for which it charged Rs 125 as premium towards third party risk, in terms of S.95(2) of the Motor Vehicles Act, 1939. The said vehicle later was transferred in the name of Respondents 2 and 3. The incident is said to have taken place on 18-3-1982 at about 10.15 a.m. When Respondent 4 was driving his motorcycle on Ring Road, when he reached hot mix plant a truck dashed against his motorcycle causing injury, for which he submitted his claim of rupees ten lakhs. The Tribunal awarded rupees one lakh sixty thousand and further recorded the following finding:"In the first instance I find that the policy appears to be a comprehensive policy as it is mentioned at the top of this document .... Under the circumstances, I hold that the Insurance Company has not produced the insurance policy in accordance with the law and so I hold that the Insurance Company is liable to pay the entire amount of compensation to the petitioner under the law and it cannot be said that the liability of the Insurance Company is limited up to Rs 50,000 only."3. Aggrieved by this, the appellant filed an appeal before the High Court. The High Court also dismissed the appeal by holding that the policy was a comprehensive policy and the liability of the Insurance Company was unlimited. The reason for disbelieving the appellant was that the copy which was produced was held not to be the carbon copy of the policy as it was signed by one Mr K.K. Anand, ADM. The Court records on the basis of his personal knowledge that there is no ADM by that name in Delhi and even if there was any, he knows that none worked as Branch Manager of this Insurance Company. Hence, the Court disbelieved the carbon copy and held that the insurance policy was comprehensive and the appellants liability was unlimited. 4. It is not in dispute that at the relevant time, under S.95(2) of the Motor Vehicles Act, 1939, the statutory liability of the Insurance Company towards the third party is limited to the extent of Rs 50,000. However, submission on behalf of the respondent owner is that the payment has been made over and above the statutory liability (sic) which is Rs 125. In addition he has paid Rs 240 which is recorded by a pen on the top of the copy which is produced by the Insurance Company. The submission is, the courts below rightly held based on this that the liability is unlimited.5. Firstly, we find the High Court fell into error in recording his finding for disbelieving the copy based onhis own personal knowledge, which cannot be sustained. We also scrutinised the said copy filed by the appellant. The reliance on the other hand for disbelieving this is based on the annexure of his own application dated 3-12-1982 copy of which is placed before us by the learned counsel. Through this he tried to show that the number of the policy in question referred to in this annexure is different from the number which is recorded in the copy produced by the appellant. This annexure which has been placed before us, is not to be found on the record of this case. Learned counsel could not show that the said annexure was ever placed on the record of this case. On this no reliance could be placed. 6. In this regard, we find the testimony of one Shri U. B. Kapoor, the Assistant of the appellant Company who has explained this difference i.e. difference of amount between Rs 125 and Rs 240 recorded in the copy of the policy produced in court. The witness states: "... the total premium charged was Rs 125. The portion encircled shows the revised premium, which we intimated to the insured before expiry of the policy made." 7. We have examined the document, the encircling is of Rs 240. 8. The submission on behalf of the appellant is, this actually indicates that what is written by pen was purely an intimation to the insured for its payment for future renewal, but this enhancement was not charged from the insured. This also explains as to why on a carbon copy, some inscription by pen has come, which is the reason for its disbelief of this document by the High Court. The writing with pen obviously is after issuance of the original policy, hence cannot form part of the original copy. This clearly indicates that what is recorded by pen is not what was charged. We find the aforesaid witness was not cross examined on this point. Hence for all these reasons the submission that the insurance premium paid was over and above Rs 125 by the figure of Rs 240 cannot be accepted. For this there is no other evidence. Accordingly, we find that the finding recorded by both the courts i.e. the Tribunal and the High Court is unsustainable, as it was based on conjectures and surmises. Firstly, the original of the policy is with the insured which has not been produced and the copy produced by the appellant could not have been disbelieved on the basis of the personal knowledge of the Court that there is no ADM and because in the carbon copy there were writings by pen.So, there is nothing on the record to show that insurance policy to the third party was for covering unlimited liability.9. In view of this, we find that this appeal has merit.

Decision:
1[ds]The submission is, the courts below rightly held based on this that the liability is unlimited.5. Firstly, we find the High Court fell into error in recording his finding for disbelieving the copy based onhis own personal knowledge, which cannot be sustained. We also scrutinised the said copy filed by the appellant. The reliance on the other hand for disbelieving this is based on the annexure of his own application datedcopy of which is placed before us by the learned counsel. Through this he tried to show that the number of the policy in question referred to in this annexure is different from the number which is recorded in the copy produced by the appellant. This annexure which has been placed before us, is not to be found on the record of this case. Learned counsel could not show that the said annexure was ever placed on the record of this case. On this no reliance could befind the aforesaid witness was not cross examined on this point. Hence for all these reasons the submission that the insurance premium paid was over and above Rs 125 by the figure of Rs 240 cannot be accepted. For this there is no other evidence. Accordingly, we find that the finding recorded by both the courts i.e. the Tribunal and the High Court is unsustainable, as it was based on conjectures and surmises. Firstly, the original of the policy is with the insured which has not been produced and the copy produced by the appellant could not have been disbelieved on the basis of the personal knowledge of the Court that there is no ADM and because in the carbon copy there were writings by pen.So, there is nothing on the record to show that insurance policy to the third party was for covering unlimited liability.9. In view of this, we find that this appeal has merit.