- (1.) AMITAVA Lala, J. This is an appeal of the Insurance Company under the old Act, i. e. , Motor Vehicles Act, 1939. It has been contended by the learned Counsel appearing for the Insurance Company that their liability is limited in terms of the agreement, therefore, the Insurance Company cannot be fasten with the entire liability of Rs. 6,10,000/ -. He contended that the liability upon the Insurance Company is to the extent of Rs. 1,50,000. From perusal of the terms and conditions which has been annexed with the paper book, we find the liability to the third party is as follows : "subject to the limits of liability the Company will indemnify the insured against all sums including claimants costs and expenses which the insured shall become legally liable to pay in respect of "
(2.) IT is contended by the learned Counsel appearing for the appellant that payment of such sum which is in the terms and conditions of the agreement is a statutory liability under Section 95 of the Motor Vehicles Act, 1939, and the Insurance Company cannot be held liable beyond the said sum. Section 95 (2) (a) of the Motor Vehicles Act, 1939 is quoted below : (a) Where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle. Although initially we were under the impression that there should be a permission on the part of the Court below to address, this case is not coming under the provisions of law as regards the permission to be granted for the purpose of appearance in the Court below as an agent of the insured. In case any statutory liability is there, the Insurance Company is obviously liable to pay for the sum but if the statute says otherwise no Court can compel a party to do something beyond the scope of the statute, therefore, the permission or no permission at the relevant point of time is immaterial. This observation is made because of several questions have been raising now a days about the same. For the fitness of the fact this application arose under the old Act, i. e. , Motor Vehicles Act, 1939 and the Judgment and award was passed on 14th February, 2000 prior to the establishment of such question as to whether the permission is liable to be granted to the Insurance Company or not. Since at such situation there was no occasion for considering the same, we cannot hold that the appeal is not maintainable, particularly when statute is directly supporting the case of the appellant. The case of the appellant is also fortified by the five Judges Bench of Hon'ble the Supreme Court rendered in the case of New India Assurance Company Limited v. C. M. Jaya & Ors. , reported in 2002 (1) JCLR 766 (SC) : 2002 (3) T. A. C. 434 (SC) and also an unreported Judgment arising out of SLP (C) No. 691/2002 in Civil Appeal No. 104 of 2003, Oriental Insurance Company Limited v. Shakuntala Garg & Ors. wherein the similar question arose. It has been answered by the five Judges Bench of the Supreme Court is as follows : "the question involved in these appeals is whether in a case of insurance policy not taking any higher liability by accepting a higher premium, in case of payment of compensation to a third party, the insurer would be liable to the extent limited under Section 95 (2) or the insurer would be liable to pay the entire amount and he may ultimately recover from the insured. " It has been further held as under : "in the case of Insurance Company not taking any higher liability by accepting a higher premium for payment of compensation to a third part, the insurer would be liable to the extent limited under Section 95 (2) of the Act and would not be liable to pay the entire amount. " Therefore, after taking into the totality of the facts and circumstances of the case as well as applicability of the law. In this respect, we are of the view that the liability of the Insurance Company should be restricted as per the statute not for the entire liability as had been fasten by the Tribunal in this respect. Therefore, the appeal is allowed. The Judgment and award of the Tribunal is modified by holding a view that out of awarded sum, the liability of the Insurance Company is restricted only to the extent of Rs. 1,50,000/ -. However, the owner of the vehicle is liable for the rest in that way the interest of the third party is protected. No order is passed as to costs. Appeal allowed. .;