F.A.O.NO. 2111 OF 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 2111 OF 2000 Date of decision:21st September, 2010 The Oriental Insurance Co. Ltd., Regional Office, 109-110-111, Sector 17-D, Chandigarh. .......Appellant Versus Budh Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Jagtar Kureel, Advocate, for Mr. D.P.Gupta, Advocate, for the appellant. Ms. Sonal Datta, Advocate, for respondent No. 1. Mr. Monish Kumar Singla, Advocate and Mr. Harpreet Singh, Advocate, for respondent Nos. 2 and 3. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company pleads for restriction of liability on the ground that damage to goods to a third party is restricted only to Rs. 6,000/- under Section 147(2) of the Motor Vehicles Act. Curiously, in this case the insurance policy was not filed at all. Only the cover note had been produced. The cover note contains details of payment F.A.O.NO. 2111 OF 2000 2 of premium paid to the tune of Rs. 15,059/-. It is not possible to comprehend from the cover note as to the respective amounts collected as premium collected under each heads of risk. There is payment of premium for Rs. 1,245/- as Act liability and therefore, it is a case where extra premium had been paid. Whether this extra premium was to cover unlimited liability is not seen. However, if any restriction of liability is sought to be advanced by the insurer, I would place the burden wholly on the insurer to contend that there was a restriction of liability to what was contained under the Act. It is always possible for an insured to secure a higher coverage for risk. Learned counsel appearing for the Insurance Company refers, me to a decision of this Court in Surinder Pal versus Oriental Insurance Company ltd. (1998) 3 PLR 626 that dealt with the case of the appellants purchasing a policy which did not offer proof that the liability was unlimited. A certified policy had been produced by the insurer in that case and the Court held that the liability was restricted. I have already stated that the insurance policy has not been produced before this court. The judgment of Hon'ble Supreme Court in New India Assurance Company Ltd. vs. C.M.Jaya and others (2002) 2 SCC 278 dealt with the case of a restrictive liability for an insurer of a goods carriage under Section 95 of the Motor Vehicles Act, 1939 where the policy terms were undisputed. There shall be no difficulty for me to cast liability as per the terms of the policy but I cannot allow an insurer to plead for a restriction of liability even without producing a policy before the F.A.O.NO. 2111 OF 2000 3 Court. 2. This court has also held that wherever a restriction of liability is sought to be made by the insurer, there shall be specific pleadings as well as the production of policy to prove such restriction in the judgment in New India Assurance Company Ltd. vs. Bachhi Bai and others in FAO NO. 585 1999 decided on 27.08.2010. 3. If the restriction of liability for damage to a vehicle cannot therefore, be restricted in the manner pleaded by the Insurer, the quantum that was awarded by the Tribunal would require to be examined for that includes also a claim for loss of income for the vehicle by its non user. Such claim is not possible under Section 168 and the Tribunal is not competent to estimate any loss of income by the non use of a damaged vehicle. Learned Counsel also refers to decision of the Kerala High Court in Kerala State Transport Corporation and others vs. Bhaskar and others (1992) ACJ 133 that dealt with the situation that loss of income cannot be claimed before the Tribunal. I have no difficulty in accepting the contention of the insurer that the claim with reference to the loss of income cannot be sustained before the Tribunal. The total of the value of the bills produced before the Tribunal was Rs. 1,38,280/- The Tribunal has awarded Rs. 1,50,000/- as compensation. The amount in excess namely of Rs. 11,720/- must be taken as the Tribunal's asessment of loss which is not permissible before the Tribunal. The Insurance Company also pleads for a case that the driver did not have a valid F.A.O.NO. 2111 OF 2000 4 driving licence. The Insurer did nothing more than producing the report of the Licencing Authority that the licence was not genuine. No attempt was made to secure the register or summon a witness to substantiate the report. The contention that the driver was not duly licenced cannot therefore, be accepted. 4. The award of the Tribunal is modified to secure a compensation of Rs. 1,38,180/- for the claimant against the insurer. The appeal is allowed in part to reduce the award to the above extent. The amount which has been deposited by the insurer shall stand released in favour of the claimant in part satisfaction of the award and they will be at liberty to recover the balance in accordance with law. [K.KANNAN] JUDGE 21st September, 2010 Shivani Kaushik