ash 1 fa-416.94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 416 OF 1994 The Oriental Fire & General Insurance C. Ltd. .. Appellant Vs Shri Atmaram Zulal Patil & Others. .. Respondents -- Shri N.V. Gangal for the Appellant. Shri V.V. Pai for Respondent Nos. 2 to 4. -- CORAM : A.S.OKA, J. DATE ON WHICH JUDGMENT IS RESERVED: 22ND DECEMBER, 2010 DATE ON WHICH JUDGMENT IS PRONOUNCED: 20TH JANUARY, 2011 JUDGMENT: . The Appellant which is the Insurer of the offending vehicle involved in the accident has taken an exception to the judgment and award dated 28th October, 1993 passed by the learned Member of the Motor Accident Claims Tribunal. The 1st to 4th Respondents are the original claimants. They filed a claim on account ash 2 fa-416.94 of death of one Jaywant Atmaram Patil in a motor accident. The deceased was an employee of the 6th Respondent. The 6th Respondent was the owner of a milk tanker. The deceased was travelling by the milk tanker on the date of the accident. The deceased was proceeding towards the Mumbai and it is alleged that the deceased was travelling as a part of his duty. At the relevant time, the 5th Respondent was driving the truck. The allegation is that the 5th Respondent was driving a truck in a rash and negligent manner. The accident occurred as the 5th Respondent suddenly applied the brakes when the tanker was in excessive speed. The deceased, who was sitting near the door at the cleaner’s side, was thrown out of the door and having come across under the wheels of the said tanker. The tanker at the relevant time was insured with the Appellant. 2. The claim petition was contested by the 6th Respondent. The 6th Respondent admitted that the deceased was a bona fide employee and that he was travelling in the milk tanker at the relevant time in pursuance of his contract with the employment. However, the 6th Respondent denied that the 5th Respondent was driving in a rash and negligent manner. The 6th Respondent contended that the accident in question occurred due to latent mechanical defect which ash 3 fa-416.94 could not be discovered by any man of ordinary prudence. The Appellant filed a separate written statement contending that the deceased was travelling as an unauthorised passenger in the driver’s cabin in the milk tanker and the risk of the deceased was not covered under the policy of the insurance. Another contention raised by the Appellant was that the 5th Respondent was not authorised to drive heavy motor vehicle and, therefore, the Appellant/Insurance Company was not liable. 3. The Tribunal recorded a finding that the accident occurred due to rash and negligent driving of the tanker by the 5th Respondent. The Tribunal held that the 6th Respondent failed to establish the case of latent mechanical defect. The Tribunal also held that the Appellant failed to establish both the defences and, therefore, the Appellant was liable. The claim made in the claim petition was for a sum of Rs.1,50,000/-. However, the Tribunal proceeded to grant compensation of Rs.2,10,000/- with interest at the rate of 12% per annum ( inclusive of amount of Rs.15,000/- granted under “No Fault Liability”). 4. The learned counsel appearing for the Appellant at the outset pointed out that the Appellant was not put to notice that the ash 4 fa-416.94 claimants were seeking compensation of more that what was claimed. He submitted that in fact the liability under the policy was limited to Rs.1,50,000/- but the Appellant had no occasion to agitate the said contention as the claim made was of a sum of Rs.1,50,000/-. He submitted that the deceased was neither a cleaner nor the driver employed by the 6th Respondent and thus he was unauthorised passenger in the tanker. He submitted that apart from the fact that the liability of a passenger was not covered under the policy, the 6th Respondent committed breach of the terms of the conditions of the policy by permitting the deceased to travel by tanker. He submitted that the evidence of the witness examined by the Appellant proved the fact that the liability of the deceased was not at all covered under the policy of insurance and in fact, the entire evidence adduced by the Appellant has been misread by the learned Member of the Tribunal. 5. The learned counsel appearing for the 2nd to 4th Respondents ( Original Claimants ) submitted that in view of the well settled law, the Tribunal had all the power to grant compensation in excess of the claim made by the Claimants provided the evidence on record is sufficient to justify grant of an amount which is in excess of the amount claimed. He submitted that from the evidence adduced by the Claimants, there was sufficient notice to the Appellant that the ash 5 fa-416.94 Claimants will be entitled to more amount than what was prayed. He submitted that there is no prejudice to the Appellant even if compensation is granted of an amount which is more than what is claimed. He submitted that the contention of the limited liability was not raised by the Appellant before the Tribunal. He submitted that in any event, the Court can always direct the Appellant to pay the amount to the Claimants and to recover the same from the insured as the policy of insurance is admitted. 6. I have given careful consideration to the submissions. The first contention is regarding the liability of the Appellant. The 6th Respondent examined one Bhaskarrao Balkrishna Patil, its Manager. He stated that it was the duty of the deceased to measure the milk received by the 6th Respondent, to test the milk and dispatch the milk by the tanker to Bombay. He stated that it was the duty of the deceased to occasionally accompany the milk tanker to Bombay in order to see that the fat contents of the milk were as per the prescribed standards. He stated that such testing was done at Bombay at the Government Dairy. The Appellant examined Mr. Jagannath Sinha Suvarna, a Divisional Manager. In the cross- examination, by the 6th Respondent, he admitted that there are two distinct types of policy, one is of private vehicle and other is of ash 6 fa-416.94 commercial vehicle. He admitted that the milk tanker was registered as a private vehicle but the certified copy of the policy produced by the Appellant was of a commercial vehicle. He stated that there were separate forms for private and commercial vehicles. It is pertinent to note that in the cross-examination, the said witness expressed inability to produce the proposal form. He also admitted that the proposal form indicates the nature of the risk covered. He also admitted that the proposal form was the basis for the contract of the insurance. He admitted that it was the practice of the office of the Company to preserve the policy docket which always contains a copy of the original. He admitted that such a copy in respect of the said tanker was not brought by him. He has not given any reason for non- production of the proposal form. 7. The Appellant also examined one Satish Balkrishna Deshpande as a witness to prove the copy of the policy produced on record. He stated that the copy of the policy is certified as true copy on the basis of the office copy kept with Dhule Branch. He also admitted that the policy forms for private carrier and commercial carrier are different. He stated that the proposal form will be produced if it is required and if it is available. He stated that the proposal form is not an important document. In the cross- ash 7 fa-416.94 examination, he proceeded to state thus:- “The policy does not cover use for carrying passengers in the vehicle except employee ( other than the driver ), not exceeding six in number, coming under the purview of Workmens Compensation Act of 1923. By paying additional premium, the Insurance Company has accepted wider legal liability under any other law than Workmens Compensation Act, in respect of the person mentioned in the schedule. In the case of private goods vehicle, the owner can use the vehicle for carrying his own goods. I do not know whether at the time of accident, the tanker in question involved in the accident, was carrying milk. I do not know whether the deceased was travelling in the said tanker by virtue of his employment.” 8. In the light of this evidence on record, the learned Member of the Tribunal came to the conclusion that the liability of the deceased was covered under the policy of insurance as he was admittedly in the employment of the insured. It is not possible to find fault with the said finding of the Tribunal. The Tribunal also recorded a finding that the Appellant failed to prove the breach of the policy condition alleged, viz., that the 5th Respondent was not having a valid driving license. 9. The second argument canvassed is as regards the alleged illegality committed by the Tribunal by granting compensation at an ash 8 fa-416.94 amount exceeding the claim amount. The law on this aspect is very clear. The Tribunal does have jurisdiction to grant compensation more than what is claimed for in the claim petition. 10. While upholding the power of the Tribunal to do so, in the case of Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire & Others ( 1987 Mh.L.J. 452 ), the Division Bench of this Court held that in all such cases, a notice or intimation should be given to the opposite party so that the opposite party gets an opportunity to meet the demand made for grant of amount which is more than what is prayed. Therefore, the record was perused by this Court. The record of the Tribunal does not give even an indication that any such intimation or notice was given to the Appellant. If intimation would have been given, the Appellant could have adduced the evidence to show that the liability under the policy was limited to Rs.1,50,000/-. As the intimation was not given, the Appellant could not come out with a case that the liability was limited. In any case, the copy of the policy on record shows that the liability was limited to Rs.1,50,000/-. To that extent, the impugned award will have to be modified. Therefore, the appeal must succeed in part and I pass the following order. ash 9 fa-416.94 O R D E R (i) The impugned judgment and award is modified only to the extent that the liability of the Appellant ( Original Opponent No.3 ) shall be confined to the sum of Rs.1,50,000/- with interest thereon as directed ( inclusive of the amount of Rs.15,000/- granted under “No Fault Liability” ). (ii) Rest of the award is not disturbed. (iii) The Appeal is partly allowed in above terms with no orders as to costs. (iv) The Appellant will be entitled to refund of the sum of Rs.25,000/- deposited in this Court with interest accrued thereon. However, the Registry shall permit withdrawal only after a period of 90 days from today. (A.S.OKA, J)