Case: National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore &amp; Others

the use (including the loading and/or unloading) of the motor vehicle. " The Schedule to the policy indicates the limits of liability and the amount of premium paid. The limits of liability are indicated as herein below : " Limits of liability :Limit of the amount of the companys Such amount as is necessary to meetliability under section II-1(1) in respect of the requirements of the Motor Vehiclesany one accident Act, 1939Limit of the amount of the companysliability under section II-1(11) in respect ofany one claim or series of claims arisingout of one event Rs. 20, 000. " The premium paid on the other hand is shown as below : Rs. P. " Premium 415.00Add 1/2% on I.E.V. 200.00Add for 53 passengers at Rs. 2.50 132.50Add for driver and conductor 10, 00757.50" 4. A perusal of the policy, therefore, indicates that the liability undertaken with regard to the death of, or bodily injury to, any person caused by or arising out of the use (including the loading and or unloading) of the motor vehicle falling under section 11(1)(i) has been confined to " such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939. " This liability, as is apparent from clause (b) of sub-section (2) of section 95 of the Act, was at the relevant time Rs. 20, 000 only. The details of the premium also indicate that no additional premium with regard to a case falling under section 11(1)(i) was paid by the owner of the vehicle to the insurance company. It is only the vehicle which was comprehensively insured, the insureds estimate of value including accessories (I.E.V.) thereof having been shown as Rs. 40, 000. In this view of the matter, the submission made by learned counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability does not obviously have any substance. The liability under the policy in the instant case was the same as the statutory liability contemplated by clause (b) of sub-section (2) of section 95 of the Act, namely, Rs. 20, 000. An award against the appellant could not, therefore, have been made in excess of the said statutory liability.Learned counsel for the appellant then urged, relying on the decision of this court in British India General Insurance Co. Ltd. v. Captain Itbar Singh [1959] 29 Comp Cas (Ins) 60 ; AIR 1959 SC 1331 , threat in view of sub-section (6) of section 96 of the Act, no insurer, to whom the notice referred to in sub-section (2) thereof has been given, is entitled " to avoid his liability " to any person entitled to the benefit of any such judgment as is referred to in sub-section (1) thereof otherwise than in the manner provided for in sub-section (2). On this basis it was urged that the appellant was not entitled to assert that its liability was confined to Rs. 20, 000 only inasmuch as this is not one of the defences specified in sub-section (2) of section 96 of the Act. We find it difficult to agree with this submission either. Firstly, in paragraph 12 of the report of this very case, it has been held that sub-section (2) of section 96 in fact deals with defences other than those based on the conditions of a policy. Secondly, from the words " to avoid his liability " used in sub-section (6) of section 96, it is apparent that the restrictions placed with regard to defences available to the insurer specified in sub-section (2) of section 96 are applicable to a case where the insurer wants to avoid his liability. In the instant case, the appellant is not seeking to avoid its liability but wants a determination of the extent of its liability which is to be determined, in the absence of any contract to the contrary, in accordance with the statutory provision contained in this behalf in clause (b) of sub-section (2) of section 95 of the Act. In the instant case, since, as seen above, the appellant did not undertake in the policy any liability in excess of the statutory liability, the award against it could be only in accordance with the said statutory liability.Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal or even before the High Court in appeal. In this connection, what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle, for reasons known to him, does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage, the necessity of approaching this court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised. 5.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In the instant case, since, as seen above, the appellant did not undertake in the policy any liability in excess of the statutory liability, the award against it could be only in accordance with the said statutory liability.Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal or even before the High Court in appeal. In this connection, what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle, for reasons known to him, does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage, the necessity of approaching this court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised.