1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.CIVIL MISC. APPEAL No.221/1998 The Oriental Ins.Co. Vs. Bhanwar Lal & Ors. Date of order : 18.3.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. Varun Gupta, for the appellant. Ms. Rekha Borana, Mr. N.K.Rastogi & Mr. Manish Shishodia for the respondents. <><><> The decision rendered in this appeal shall also govern disposal of other three connected Misc. Appeals being C.M.A.No.214/98, C.M.A.No.215/98 and C.M.A.No.222/98 because firstly all the 4 Misc. Appeals arise out of one award and secondly they arise out of one vehicular accident. 2. This is a Misc. Appeal filed by insurer (Insurance Company) of offending vehicle under Section 173 of Motor Vehicles Act (for short hereinafter called “the Act”) against an award dated 6.9.97 passed by M.A.C.T. Chittorgarh in Misc.Civil Case No.222/88 along with other three connected appeals. 2 3. By the impugned order, the Tribunal partly allowed the claim petition of claimants (Respondents No.1 to 3) filed under Section 166 of the Act and awarded to them Rs.64,000/- for the death of one lady Savitri Bai. The Tribunal passed the award jointly and severally against both the non-applicants i.e. Insurer and Insured of offending vehicle. 4. The only contention raised by the appellant (Insurance Company) i.e. insurer in their appeal is that Tribunal erred in passing an award of Rs.64,000/- against them. According to them, the liability of appellant was confined to Rs.15,000/- as per Section 95(2)(b)(ii) as it stood then and hence the award was not legally sustainable in so far as it seeks to fasten a liability against the appellant for a sum more than Rs.15,000/-. So the question that arise for consideration in this appeal is whether Tribunal was justified in passing an award for Rs.64,000/- against the appellant i.e. insurer of offending vehicle and if so whether it can be held to be in confirmity with the provisions of Section 95(2)(b)(ii) of the Act of 1939 as it stood then i.e. at the time of accident. 5. In order to decide the aforesaid question only few facts are relevant to be mentioned infra. Indeed they are not in dispute. 3 6. On 14.8.88, Savitri Bai was traveling as passenger in a bus bearing number MPU-5212, when it turned turtle in Magra Ghati. Due to this accident, Savitri Bai sustained injuries and eventually succumbed. Like her, three more passengers traveling in the bus also suffered injuries and later succumbed. This led to filing of four claim petitions by their respective legal representatives under Section 166 of the Act of 1939 before Claims Tribunal against Insurer of offending vehicle (appellant herein) and insured (NA-1/R.4) claiming compensation for her death out of which 4 Misc. Appeals arise. It was alleged that accident occurred due to negligence of driver of bus and since the bus was insured with the Insurance Company (appellant) on the date of accident and hence both insurer and insured are liable to suffer the liability arising out of accident. 7. The case was contested by non-applicants. Though the insured denied the claim, the case of insurer was that since the deceased was a passenger traveling in the bus, the liability of insurer, under Section 95(2)(b)(ii) as applicable on the date of accident, is confined to Rs.15,000/- and not more than this amount. 8. Parties adduced evidence. As observed supra, the Tribunal allowed the claim petition in part and passed an 4 award for Rs.64,000/- against both jointly and severally. It was held that insurance company is liable to pay whole awarded sum. In other words, the objection of insurance company as taken note of supra was overruled. It is against this award, the insurance company has felt aggrieved and filed this appeal. 9. Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to allow this appeal and modify the impugned award as indicated infra. 10. Section 95(2)(b)(ii) as it stood then i.e. at the time of accident (14.8.87) read as under: “95(2)(b)(ii):-in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;” 11. Reading the aforesaid Section would clearly go to show that liability of insurer in respect of individual passenger traveling in a vehicle carried for hire or reward is Rs.15,000/- in the case of injury or/and death occurred in accident. 12. It is not in dispute that the accident in question occurred on 14.8.88 when deceased Savitri Bai was travelling in bus as 5 one of its passenger. In this view of the matter, the case would squarely fell within the forecorners of Section 95(2)(b) (ii) ibid and hence the liability of insurance company in respect of accident arising in such case would be limited only upto Rs.15,000/- and not more than Rs.15,000/-. 13. Indeed this is what is held by Supreme Court in the case reported in AIR 2002 SC 691 New India Assurance Company Vs. C.M.Jaya. In this case, their Lordship upheld their earlier view taken in the case of New India Assurance Company Vs. Shanti Bai (AIR 1995 SC 1113) by laying down the following law: “In the case of Insurance Company not taking any higher liability by accepting a higher premium for payment of compensation to a third party, the insurer would be liable to the extent limited under S. 95(2) of the Act and would not be liable to pay the entire amount. The deceased was riding the pillion seat of a two-wheeler when it met with a truck insured by the appellant-Insurance Company by comprehensive insurance policy. It is not the case that any additional or higher premium was paid to cover unlimited or higher liability than the statutory 6 liability fixed as found in the term of the policy and copy of the insurance policy produced before the Court shows that the liability of the Insurance Company is limited to Rs.50,000/- in regard to the claim in question. It necessarily follows that the liability of the Insurance Company is limited to Rs.50,000/-. The liability of the Insurance Company was unlimited merely on the ground that the insured had taken a comprehensive policy i.e. the truck was covered by a comprehensive insurance policy. The liability of Insurance Company could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in S.95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term of clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it 7 is so done, it amounts to re- writing the statute or the contract of insurance, which is not permissible. 1996 AIHC 1471 (Delhi), Reversed. New India Assurance Co. v. Shanti Bai, 1995 AIR SCW 1142, Approved.” 14. In my opinion, the aforesaid principle of law fully applies to the facts of this case because in this case also no additional premium was charged by insurance company to cover extra liability of insured. In this view of the matter, the liability arising out of such accident would not extend Rs.15,000/- so far as insurance company is concerned. 15. Learned counsel for the respondent (claimant) however contended that policy was neither filed nor proved and hence this submission of learned counsel for appellant should not be entertained much less accepted. I find no merit in this submission. In the first place the insurance company did file the photocopy of policy. Secondly it was also exhibited and lastly no objection was raised about its admissibility at the time of evidence. In the light of these reasoning, this submission is not acceptable. It is accordingly rejected. 8 16. Learned counsel for the respondent then placed reliance on a decision reported in 2003(8) SCC 718 and contended that since the limit of liability was extended upto Rs.1,50,000/- by amending Act of 1982 and hence the company is liable to pay the whole awarded amount, which is very much within the ceiling limit. I do not agree. Perusal of decision relied upon by the learned counsel for the respondent would go to show that it does not relate to a case of passenger travelling in a bus but it is a case of person traveling in goods vehicle and hence it was governed by Section 95(2)(a) of 1939 Act, whereas the case in hand is governed by Section 95(2)(b)(ii) ibid. It is due to this subtle distinction, the decision relied on by learned counsel for the respondent is of no help to claimants. 17. In the light of foregoing discussion, the appeal filed by insurance company deserves to be allowed. It is accordingly allowed. Impugned award is modified to the extent that appellant (insurance company) is held liable to pay Rs.15,000/- out of total awarded sum to the claimant along with interest awarded by the Tribunal, whereas remaining awarded amount is recoverable from insured (NA-1). 18. This takes me to cross-objection filed by respondents in only two appeals i.e. C.M.A.no.221/98 and 9 C.M.A.No.222/98 for enhancement. 19. So far as C.M.A.No.221/98 is concerned the Tribunal has awarded total sum of Rs.64,000/- for the death of one Savitri Bai, who was around 35 years at the time of death. Having gone through the evidence adduced by claimants and keeping in view the young age of deceased (35 years) and the fact that she was essentially a housewife, I consider it just and proper to award in lump sum Rs.1 lakh to the claimants for her death. The enhanced sum would carry interest at the rate of 6% from the date of application till realization. It is however made clear that it is only passed against the insured (NA-1). The cross objection of respondents is thus allowed in part to the extent indicated herein. 20. Coming now to C.M.A.No.222/98 it is also a case of death of one Shyam Lal who died at the age of 22 years. He was a young man having long future and hence I consider it just and proper to award on the basis of evidence adduced by claimant a total sum of Rs.1,50,000/- in lump sum to claimant for his death. In other words, looking to his age, background and all other relevant aspects, a sum of Rs.1,50,000/- appears to be just and proper. Accordingly, the claimants are awarded compensation of Rs.1,50,000/-. The enhanced sum would carry interest at the rate of 6% from the date of application 10 till realization. It is passed against the insured (NA-1). The cross objection of respondent is thus allowed in part to the extent indicated herein. (A.M.SAPRE ),J. /tarun/