The New India Assurance Co. Ltd. v. Darshan Singh And Others

D.P WADHWA, J.:— This is a Letters Patent Appeal against the judgment dated 13th February, 1989 of the learned single Judge whereby he held that the appellant Insurance Company was liable to pay a compensation of Rs. 1,35,000/- to the widow and minor son of deceased Rakesh Mohan Solan who died in motor accident on 28th June, 1979. Solan was driving his two-wheeler scooter and his minor daughter was a pillion rider. Both died in the accident caused by the truck bearing registration No. DHG 3315. Solan is survived by his widow Saroj and his minor son Neeraj and his aged parents. They are respondents 3 to 6. Respondent No. 1 is the driver of the offending truck and respondent No. 2 is the owner thereof.

2. Learned Motor Accident Claim Tribunal found that the deceased Solan was having an income of Rs. 1,000/- p.m out of which he was spending Rs. 250/- per month on his personal expenses and dependency of his heirs is Rs. 750/- per month. At the time of his death, Solan was aged 39 years. The learned Tribunal awarded Rs. 1,35,000/- as compensation and limited the liability of the appellant Insurance Company to Rupees 50,000/-. Saroj, the widow and other heirs of the deceased Solan appealed. Learned single Judge found that Insurance Company had not taken up any plea of its liability being limited to Rs. 50,000/- and no copy of the policy had been produced at the time of filing written statement, though a copy was filed during the statement of a Clerk of the Insurance Company, who said that he was having a power of attorney from the Insurance Company but no such power of attorney was either shown by him or filed on the record. The preliminary objection taken by the Insurance Company before the Tribunal was that all the heirs of the deceased Solan had not filed the petition claiming compensation. The legal heirs had claimed Rs. 5 lakhs and had said that all the respondents being, the driver, owner and the insurer were jointly and severally liable. Both the driver and owner were proceeded ex parte. On the pleas of the parties, the Tribunal framed the following issues :

1) Whether Sh. Rakesh Mohan Solan deceased suffered fatal injuries in accident on 28-6-79 caused due to rash and negligent act of driving of truck No. DHG-3315 on the part of respondent No. 1?

2) Whether the petitioners are the L.Rs of the deceased?

3) Whether the Insurance Company is not liable for the reasons contained in the pre-liminary objections of its written statement?

4) Whether the accident was caused due to negligence on the part of scooter driver i.e of deceased?

5) To what amount of compensation, if any, are the petitioners entitled and from which of the respondents?

6) Relief.”

The Award of the Tribunal is dated 26th February, 1986 given after 7 years of the date of the accident. The Tribunal computed the amount at Rs. 1,35,000/-, out of which the Insurance Company was asked to pay Rs. 50,000/- and the balance was to be paid by the owner and the driver. The amount awarded was to carry interest at the rate of 9 per cent per annum from the date of filing of the petition unless the amount was paid within 60 days from the date of the order. It is stated that Insurance Company did deposit Rs. 50,000/- within this period. On the facts of the case in appeal, Learned single Judge, however, came to the conclusion that the Insurance Company was liable to pay compensation of Rs. 1,35,000/- and its liability could not be limited to Rs. 50,000/-. He also held that the amount of compensation would carry interest at the rate of 9 per cent per annum from the date of application till realisation.

3. We do not find any reason for us to interfere with the Judgment of the Learned single Judge in the present case. Mr. Sabharwal, learned counsel for the appellant took us through the record of the Tribunal. We find that there was no plea by the Insurance Company that its liability was in any way limited. The Insurance Company had to take this plea when the petitioners had made a claim of Rs. 5 lakhs and it was stated that all the three respondents were jointly and severally liable. We also do not find any error in awarding interest from the date of filing of the petition for compensation. When this appeal was admitted, by an interim order, this court directed that the Insurance Company will deposit the amount of simple interest at the rate of 9 per cent per annum on the sum of Rs. 50,000/- from the date of the application till the date of payment with the Registry of this Court and liberty was given to the widow Saroj to withdraw the same. It is stated that interest amount of Rs. 46,295/- has since been deposited by the Insurance Company. Mr. Sabharwal referred to two decisions of the Supreme Court : New India Assurance Co. Ltd. v. Ram Lal, 1988 Acc CJ 754, and National Insurance Co. Ltd. v. Jugal Kishore, 1988 Acc CJ 270 : (AIR 1988 SC 719). In the first case, the Court referred to the provision of Section 95(2)(a) of the Motor Vehicles Act, 1939, where the maximum liability of the Insurance Company had been fixed at Rs. 50,000/-. In this case, the Court directed the appellant Insurance Company to pay Rs. 50,000/- with interest at the rate of 12 per cent from the date of filing of the petition till the date of deposit. In the second case also, the court referred to the provision of S. 95(2)(b) of the Act and drew a difference between Comprehensive insurance and insurance limited to statutory liability. However, the Court made pertinent observation regarding the plea to be taken in defence by the Insurance Company and filing of the copy of the insurance policy along with its defence. The Court said that it wished to emphasize that in all such cases where the insurance Company concerned wished to take a defence in a claim petition that its Liability was not in excess of statutory liability, it should file a copy of insurance policy along with its defence. We have already noticed above that no such plea was taken by the Insurance Company and no copy of the insurance policy filed along with the written statement. A printed copy was merely brought on record at the time of the statement of the sole witness of the Insurance Company. Such a copy hardly inspires confidence. It is not clear as to who has testified it as a true copy and from where it was obtained. We, however, leave the matter at that. We may also note that statutory liability has been successively increased from Rs. 20,000/- to Rs. 50,000/-, to Rupees 1,50,000/- and now under the new Act, the liability is unlimited in accident like this. As noted above, we do not wish to interfere in the order of the Learned single Judge, holding the liability of the appellant Insurance Company for Rs. 1,35,000/- and awarding interest at the rate of 9 per cent per annum on this amount from the date of filing of the petition.

4. The appeal is, therefore, dismissed. Since the respondents are unrepresented, there would be no orders as to costs.

Appeal dismissed.