Judgment:
M.Y. Eqbal, J.
1. This appeal is directed against the judgment and award dated 20.6.1991 passed by Additional Claims Tribunal, Hazaribagh, in Compensation Case No. 63 of 1987 allowing the claim of the claimant-respondent No. 1 and awarding compensation of Rs. 95,000 together with interest at the rate of 12 per cent from the date of filing of the claim petition.
2. The claimant-respondent No. 1 filed the aforementioned case before the Claims Tribunal for the grant of compensation on account of death of one Surinder Prasad Gupta who died while travelling in a bus. According to the claimant on 12.5.1987 the deceased was travelling by Amit bus bearing registration No. BPQ 9900 and was going to Gaya from Ramgarh. It is alleged that when the bus reached near Masipirhi on the national highway it was being driven rashly and negligently and as a result of which it dashed against another bus coming from opposite direction. The impact of dashing was that the deceased died on the spot because of grievous head injury. The owner of the bus appeared and filed written statement stating, inter alia, that the death of the deceased was caused due to negligent and rash driving of an unknown coach bus which was not identified by anybody. The opposite party denied its liability for payment of any compensation. It is further stated that the vehicle was insured with Oriental Insurance Co. Ltd. by a comprehensive insurance policy and, therefore, the compensation, if any, is payable by the insurance company.
3. The appellant insurance company in its written statement took a general defence and stated, inter alia, that in any event the liability of the insurance company is limited to the extent provided under Section 95 of the Motor Vehicles Act, 1939. The learned Claims Tribunal on the basis of the case of the parties framed the following issues for determination:
(i) Is the claim petition maintainable?
(ii) Has the claimant made out a case for the allowance of compensation, if so, to what extent and from whom?
(iii) To what other relief or reliefs, if any, is the claimant entitled?
4. The Tribunal after considering the facts and evidence brought on record held that the accident took place due to rash and negligent driving of the driver. The Tribunal, therefore, assessed the compensation at Rs. 95,000 and held that under the insurance policy the entire amount of compensation is payable by the insurance company.
5. Mr. G.C. Jha, the learned Counsel appearing for the appellant assailed the judgment and award of the Tribunal as being contrary to law and the facts and evidence on record. The learned Counsel submitted that the vehicle in question, namely, Amit bus was not involved in the accident on the relevant date and the deceased was not travelling in the said bus. The learned Counsel drew my attention to some documents and submitted that as a matter of fact the vehicle met with an accident on 17.5.1987 in which no death or personal injury was caused to any person. I do not find any force in the submission of Mr. Jha. At the very outset I must indicate that in the written statement filed by the owner and insurer of the bus it was not denied that accident did not take place on 12.5.1987 rather the case of the owner of the vehicle is that the accident took place due to rash and negligent driving of an unknown coach which was not identified by anybody. As noticed above, the claimant's case is that the bus in question, namely, Amit bus dashed against another bus. The owner, therefore, tried to make out a case that the other bus dashed against Amit bus. The Tribunal considered all the documents filed by the appellant in support of the fact that the vehicle met with an accident on 17.5.1987. The Tribunal very rightly held that the documents filed by the insurance company relate to another accident and it does not prove that no accident took place on 12.5.1987. Moreover, the claimant examined several witnesses including one eyewitness who have consistently stated that the accident took place on 12.5.87 when the deceased was travelling in the said bus. A certified copy of the F.I.R. was also filed which is on the record in proof of the accident occurred on 12.5.1987. I, therefore, do not find any material to hold otherwise.
6. The next question which falls for consideration is as to what should be the liability of the insurance company. The Tribunal considered the copy of the insurance policy, Exh. C and held that since the vehicle was comprehensively insured the entire liability for payment of compensation rests with the insurance company. Mr. A.K. Lal, learned Counsel appearing for the claimant drew my attention to Exh. C, the insurance policy and submitted that the liability column in relation to passenger is blank and in that view of the matter the insurance company shall be liable for payment of entire compensation. In support of his contention learned Counsel relied upon a decision in the case of Darshani Devi v. Sheo Ram, 1987 ACJ 931 (Rajasthan). On the other hand, Mr. A.K. Dixit, learned Counsel appearing for the owner of the vehicle submitted that the vehicle is comprehensively insured and, therefore, the insurance company undertook to cover the entire liability. However, learned Counsel could not point out from the insurance policy that additional premium was paid for covering unlimited liability to the passengers. I have perused the insurance policy and found that a premium of Rs. 624 was paid for covering the risk of 52 passengers for meeting the requirements of the Motor Vehicles Act. I further find that for covering the unlimited liability of third party and damage to the property an additional premium of Rs. 150 was paid. It is clear from the policy that no additional premium was paid for covering unlimited liability to the passengers. As noticed above a sum of Rs. 624 was paid for covering 52 passengers at the rate of Rs. 12 per passenger. In my opinion, therefore, the liability of the insurance company was restricted to the extent as provided under the Motor Vehicles Act, 1939, i.e., Rs. 15,000 per passenger.
7. It is well settled that comprehensive insurance of the vehicle does not mean that limit of the liability with regard to third party risk or passenger risk becomes unlimited or higher than the statutory liability fixed under Sub-section (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on account of liability undertaken by the insurance company in this behalf. Reference may be made to the decision of the Apex Court in the case of National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC).
8. In the case of New India Assurance Co. Ltd. v. Shanti Bai, 1995 AC J 470 (SC), a similar question arose before the Apex Court as to what would be the liability of the insurance company if the premium for covering the risk of the passenger is at the rate of Rs. 12 per passenger. Their Lordships held that:
In the present case, the premium which has been paid is at the rate of Rs. 12 per passenger and is clearly referable to the statutory liability of Rs. 15,000 per passenger under Section 95 (2) (b) (ii) of the Motor Vehicles Act, 1939. In the present case, there is no special contract between the appellant company and respondent No. 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed out by this Court in the case of National Insurance Co. Ltd. v. Jugal Kishore, 1988 AC J 270 (SC), comprehensive policy only entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with regard to the third party risk becomes unlimited or higher than the statutory liability. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimohammed v. P.A. Ahmedkutty, 1987 AC J 872 (SC). The appellant company is, therefore, entitled to succeed to the extent that it has been directed to pay to respondent Nos. 1 to 3 any amount in excess of Rs. 15,000.
9. The decision relied upon by Mr. Lal in the case of Darshani Devi v. Sheo Ram, 1987 ACJ 931 (Rajasthan), does not apply in the facts of the present case inasmuch as since in the column of unlimited liability to passengers nothing was paid by way of additional premium, therefore, it was not filled up. Against the column of additional unlimited liability for third party and 'own damage' additional premium was paid and, therefore, it was filled up. It was not disputed by the learned Counsel appearing for the respondent owner that only Rs. 624 was paid by way of premium for covering the risk of 52 passengers. In that view of the matter, I am of the opinion that the Tribunal has committed error of law in holding that the entire liability for payment of compensation rests with the insurance company because the vehicle was comprehensively insured. I am, therefore, further of the opinion that out of the total compensation the appellant insurance company is liable to pay Rs. 15,000 and rest amount is payable by the respondent owner of the vehicle.
10. I have also heard learned Counsel appearing for the parties on the cross-objection. According to Mr. A.K. Lal, the Tribunal has committed grave error of law in assessing the amount of compensation and the amount awarded by it is much low. According to the learned Counsel even assuming that the income of the deceased was Rs. 1,000, the amount of compensation comes to Rs. 1,90,000, then 50 per cent ought not to have been deducted out of the total compensation. 1 find force in the submission of learned Counsel. The Tribunal should have deducted only one-third out of the total compensation towards the personal expenses by the deceased. In such circumstances, the Tribunal should have assessed the compensation of at least a sum of Rs. 1,27,000. Taking a lump sum of Rs. 1,25,000, in my opinion, would be reasonable compensation. The award of the Tribunal is, therefore, liable to be enhanced to Rs. 1,25,000.
11. In the result, the instant appeal and the cross-objection are allowed in part and the amount of compensation awarded by the Tribunal is enhanced to Rs. 1,25,000. It is held that out of the total compensation the appellant insurance company shall be liable to pay a sum of Rs. 15,000 and the rest of the amount shall be payable by the respondent owner of the vehicle. The amount of compensation shall carry interest at the same rate as awarded by the Tribunal.