Letters Patent Appeal No.890 OF 1996 Against the order dated 31.7.1996 passed by a learned Single Judge in Miscellaneous Appeal No.82 of 1993 ---------- THE NEW INDIA ASSURANCE CO.LTD-------------------Appellant Versus SAMSUL HAQUE & ORS----------------------------------Respondents ---------- For the Appellant : Mr.Shravan Kumar, Senior Advocate Mr.R.N.Singh, and Mr.Sanjay Kumar Singh, Advocates. For the Respondents : G.P.XV. -------- P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD THE HON’BLE DR. JUSTICE RAVI RANJAN --------- C.K.Prasad & Dr.Ravi Ranjan, JJ: This Letters Patent Appeal arises out of an order dated 31.7.1996 passed by a learned Single Judge in Miscellaneous Appeal No.82 of 1993. An accident took place on 24.7.1987 while the deceased Akbar Ali was travelling by a jeep bearing registration no.BPF 5831. He died in the said accident. His widow, minor children and other relations filed application for grant of compensation under the provisions of the Motor Vehicles Act, 1939. The vehicle was insured with the New India Assurance Company. The Motor Vehicle Accident Claims Tribunal (hereinafter referred to as the “Tribunal”) by its award dated 6th of February, 1993 granted compensation to the tune of 2 Rs.2,52,000/-. One of the issues in the case was as to whether the liability of the New India Assurance Company (hereinafter referred to as the “Assurance Company”) is limited or not ? The Tribunal on consideration of the materials on record came to the conclusion that the liability of the Assurance Company is not limited. Aggrieved by the same, the Assurance Company filed Miscellaneous Appeal No.82 of 1993 before this Court. By order dated 31.7.1996, the appeal has been dismissed. Against the aforesaid order, the present appeal has been filed. It is not the quantum of compensation but the liability of the Assurance company, which is an issue in this appeal. By order dated 16.7.1997, this Court observed that the question of maintainability of the appeal shall be decided as a preliminary issue. Despite service of notice on respondents, although vakalatnama has been filed on their behalf but when the appeal is taken up, nobody has chosen to appear on their behalf. Appellant is represented by Mr.Shravan Kumar, Senior Advocate. As this appeal has been instituted prior to the substitution of Section 100A of the Code of Civil Procedure by Code of Civil Procedure Amendment Act 2002 (Act 22 of 2002), it is inexpedient to consider the effect thereof in the present appeal. This appeal has been preferred under Clause 10 of 3 the Letters Patent of the Court. Same reads as follows : “10. Appeal to the High Court from judges of the Court.- And we do further obtain that an appeal shall lie to the said High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order) made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or after the first day of February, One thousand nine hundred and twenty-nine, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs of Successors in Our or Their Privy Council, as hereinafter provided.” From a plain reading of the aforesaid clause, it is evident that an appeal shall lie from a judgment made in exercise of appellate jurisdiction before a Division Bench. The appeal 4 under Clause 10 of the Letters Patent could be debarred only when the statute under which the appeal is preferred before the Single Judge prohibits filing of further appeal. Nothing has been brought to our notice that the Motor Vehicles Act, 1939 under which the appeal was preferred and has been adjudicated by the learned Single Judge prohibits filing of further appeal. Further Sine-qua-non for exercise of the power under Clause 10 of the Letters Patent is that the order passed by a learned Single Judge is a judgment. Thus what requires to be seen is as to whether the impugned order can be said to be judgment within the meaning of Clause 10 of the Letters Patent. The expression “judgment” in our opinion means decision which affects the merit of the question between the parties determining some right or liability. Order passed by the learned Single Judge has put an end to the proceeding before it. Viewed from this angle there cannot be an escape from the conclusion that the order of the learned Single Judge is a judgment within the meaning of Clause 10 of the Letters Patent and there being no prohibition of further appeal under the Motor Vehicles Act, 1939, the present Letters Patent Appeal is maintainable. We hasten to add that we have not considered the effect of Section 100A of the Code of Civil Procedure on this appeal. Assailing the order on merit, Mr.Kumar submits that the accident had taken place in the year 1987 and the liability of 5 the Insurance company is limited up to a maximum of Rs.50,000/.In support of his contention, he has placed reliance on the certificate of insurance (Ext. A/2) in which under heading “Limits of liability”, it has been mentioned as such : “Limits of liability (b) if it mentioned liability u/s – illegible in respect of any one claim or series of claim arising out of one event Rs.50,000/-.” He points out that so far as the third party liability is concerned, irrespective of the nature of policy the Assurance company’s liability would be limited to what has been provided under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939 (hereinafter referred to as the “Act”). In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Versus Shanti Bai (Smt.) and others [(1995) 2 Supreme Court Cases 539] and our attention has been drawn to paragraph 9 of the judgment, which reads as follows : “In the present case, the premium which has been paid is at the rate of Rs 12 per passenger and is clearly referable to the statutory liability of fifteen thousand rupees per passenger under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939. In the present case, there is no special contract between the appellant-Company and Respondent 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed out by this Court in the case of National Insurance Co. Ltd. V. Jugal Kishore comprehensive policy only entitles the 6 owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimohammed v. P.A. Ahmedkutty. The appellant-Company is, therefore, entitled to succeed to the extent that it has been directed to pay to Respondents 1 to 3 any amount in excess of Rs 15,000.” We do not find any substance in the submission of Mr.Kumar and the authority relied on is clearly distinguishable. It is relevant here to state that the Assurance company has not brought on record the policy before the Tribunal. Not only that, when the appeal was taken up on 27.3.1997, Assurance company was given time to file affidavit enclosing therewith a copy of insurance policy. Said policy has not been brought on record during the pendency of this appeal also. Section 95(2)(b)(ii) of the Motor Vehicles Act, which is relevant for the purpose, reads as follows : “95. Requirements of Policies and limits of liability.- xxx xxx xxx xxx (2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely :- xxx xxx 7 (b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment – xxx xxx (ii) in respect of passengers a limit of fifteen thousand rupees for each individual passenger.” xxx xxx Section 95 of the Act forms part of Chapter 8 of the Act which deals with assurance of Motor vehicles against third party risk. Under Section 95, in order to comply with the requirement of this Chapter a policy of insurance must be a policy which, inter alia, insures the person or classes of persons specified in the policy to the extent specified in sub-section 2. A motor vehicle cannot be plied without the said policy, but it cannot be said that the owner of the vehicle cannot have a policy which can cover the unlimited liability. It is well settled that there can be a special contract to cover unlimited liability in respect of passengers between the owner of the vehicle and the assurance company. The assurance company has not brought on record the policy and from the certificate it cannot be inferred that there was no special contract to cover unlimited liability. From perusal of the certificate, it seems that the owner of the vehicle has paid premium besides the premium for limited liability to the passengers. The insurance policy was in custody of the assurance company and it has not 8 chosen to file the same. In view of aforesaid, we find it difficult to upset the view of the learned Single Judge that assurance company had unlimited liability. No case is made out for our interference. We do not find any merit in the appeal and it is dismissed accordingly, but without any order as to costs. (Chandramauli Kr.Prasad, J.) (Dr. Ravi Ranjan, J.) Patna High Court Dated, 18th of July, 2008. NAFR/ Narendra/