1 C.M.A. No.298/1997 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Miscellaneous Appeal No.298 of 1997 Vijendra Kumar Gupta son of Shri Tejmal Gupta V E R S U S Nirmal Singh son of Shri Dilap Singh & Others Date of Judgment :::: 12/08/2010 Hon'ble Mr.Justice Dalip Singh Shri Ram Singh Rathore, Counsel for the appellant Shri Vinod Tyagi, Counsel for the Respondents *** Per Court : This is an appeal, under Section 173 of the Motor Vehicles Act, 1988, preferred by the owner of the vehicle against the award passed by the learned Motor Accident Claims Tribunal, Bundi in claim case No.5/1984 decided on 9th May, 1996. Submission of the learned counsel for the appellant, in short, is that the learned Tribunal has held that the liability of the insurance company is limited upto Rs.15,000/- and over and above the aforesaid amount the liability has been assigned to the appellant, who is the owner of the vehicle. Learned counsel submits that even the Division Bench of this Court in the case of National Insurance Co. Ltd. Vs. Hastimal Lodha & 5 Ors., reported in M.A.C.D. 2006 (2) Raj.) 1123 has taken into account similar terms and conditions of the policy and has held that since the insurance company has charged premium over and above the act only 2 C.M.A. No.298/1997 liability, to cover public risk by charging Rs.240/- as premium the liability of the insurance company is now unlimited and the learned Tribunal has committed an error in holding that the liability of the insurance company was limited to the extent of Rs.15,000/- only as against unlimited liability based upon the terms and conditions of the policy and the premium charged thereon. Learned counsel appearing for the insurance company, on the other hand, sought to contend that the aforesaid decision in National Insurance Co. Ltd. Vs. Hastimal Lodha's (supra) has been challenged by the insurance company before the Hon'ble Supreme Court and an appeal against the same is pending before the Hon'ble Supreme Court. I have considered the aforesaid submissions and I find that so far as the present case is concerned, vide Exhibit-1 cover-note, in the policy the insurance company has charged the following premium. Policy No.30/84/3064. Schedule of Premium OWN DAMAGE BASIC Rs.. B:- LIABILITY TO PUBLIC RISK Rs. 240 Add 3% Extra Fitting Rs. Add L.L. To passenger 47 Rs. 564 Rs. Rs. Add % on I.E.V. Rs. Add L.L. To paid Driver/Cleaner Rs. 16 Rs. Rs. Less % Disc on Excess (Max.Rs.__/- Rs. Rs. 50 3 C.M.A. No.298/1997 OWN DAMAGE BASIC Rs.. B:- LIABILITY TO PUBLIC RISK Rs. 240 Rs. T.P. Liability upto 1,50,000/- Rs. Add. Riot & Strike Rs. Less % NCB Rs. Rs. Comprehensive premium (A+B) Rs. Less % NCB Rs. Nett Premium due (rounded off) Rs. 870 Learned counsel pointed out from the judgment in National Insurance Co. Ltd. Vs. Hastimal Lodha's case (supra) that in identical situation Division Bench held that where Rs.240/- had been charged to cover the public risk the liability of the insurance company was held to be unlimited. In National Insurance Co. Ltd. Vs. Hastimal Lodha's (supra) the Division Bench of this Court in Para 10 of the report has held as follows :- “In the matters before us, the learned Single Judge observed that since a premium of Rs.240/- has been charged by the Insurance Company to cover the liability to public risk which is higher than the 'Act only', the premium of Rs.200/-. Therefore, in view of the decision rendered in the cases of Smt. Dropdi Devi & Ors. Vs. Inder Kumar & Anr., 1996 (3) W.L.C. 356 and New India Assurance Co. Ltd. Vs. Pushpa Kakkar & Ors., II (1992) ACC 191, the liability of the Insurance Company would be unlimited and the Insurance Company was liable to meet out all third party liability claims and the Insurance Company cannot avoid the liability to pay the awarded amount to the claimants. As in the aforesaid case of National Insurance Co. Ltd. Vs. Hastimal Lodha's (supra) in the 4 C.M.A. No.298/1997 present case also as would be evident from the table of the premium chart quoted above, the insurance company has charged Rs.240/- towards the liability for covering the public risk. Thus, where the additional premium had been charged to cover the liability to public risk and Rs.240/- charged as premium, as has been held by the Division Bench of this Court the liability of the insurance company would be unlimited as against the limited liability held by the learned Tribunal. In the result, the award passed by the learned Tribunal limiting the liability of the insurance company to Rs.15,000/- and passing the remaining burden on the appellant owner of the vehicle is concerned deserves to be set aside. Accordingly, the miscellaneous appeal is allowed and it is directed that in view of the fact that the additional premium of Rs.240/- had been charged in the instant case the liability of the insurance company is unlimited and would cover the entire risk under the award. The stay application also stands disposed of. No order as to costs. (Dalip Singh),J. Ashok/