Amitava Lala, J. - (1.) -This appeal has been preferred by the insurance company from the judgment and order dated 31.8.1988, passed by concerned Motor Accidents Claims Tribunal, Agra. The contention of the appellant is that although the awarded amount is Rs. 2,15,000 but the insurance company has a limited liability in accordance with law, i.e., the Motor Vehicles Act, 1939 (hereinafter referred to as the old Act) to the extent of Rs. 1,50,000. Both, the insurance company and the claimants, are present before this Court but in spite of service of notice the owner is not present.
(2.) A preliminary objection has been raised by the learned counsel appearing for the claimants-respondents before this Court that the appeal is not maintainable in view of Section 110 (2A) of the old Act which is parallel to Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as the new Act). In other words, no permission has been granted to the insurance company to contest the claim, therefore, the appeal cannot be maintainable, in view of the ratio of the recent judgment of this Court in Oriental Insurance Company Limited v. Smt. Manju and others, 2007 (4) ADJ 101 : 2007 (2) AWC 1927, following the judgment of three Judge-Bench of Supreme Court in National Insurance Co. Ltd., Chandigarh v. Nicolleta Rohtagi and others, AIR 2002 SC 3350 : 2003 (1) AWC 23 (SC). On the other hand, argument as advanced by the learned counsel appearing for the claimants-respondents is that Section 96 of the old Act is equivalent to Section 149 of the new Act and as per Section 149 (2), if there is any breach of policy, in that case, the insurance company can prefer an appeal irrespective of right of contest, which point is also covered by both the judgments, i.e., Smt. Manju (supra) and Nicolleta Rohtagi (supra). Under such circumstances, we have called upon the lower court record to verify the scope and ambit of insurance coverage, i.e., the insurance policy. We find that the insurance policy of the particular year, when the accident was occurred, is not available but of the previous year it is available, which is comparable with the cover note of the year when the accident took place. We also find that in both the years similar premium was paid covering the liability of the insurance company to the extent of Rs. 1,50,000. The additional premium, which has been received cannot seem to be unlimited from the plain reading of it. Learned counsel appearing for the claimants-respondents contended before us that irrespective of such factum, particularly when the owner is not available and the long period has been elapsed, it is desirable that the insurance company will pay the amount and recover the same from the owner. It has been submitted by learned counsel appearing for the insurance company that five Judge-Bench judgment of Supreme Court in New India Assurance Co. Ltd. v. C. M. Jaya and others, JT 2002 (1) SC 198 : 2002 (1) AWC 588 (SC), is squarely covering the field. Specific question in such judgment 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." On this question a discussion is made in paragraph 10 which is as follows : "In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher, if it is so done, it amounts to re-writing the statute or the contract of insurance which is not permissible." Ultimately the Court held as follows : "In the case of insurance company not taking any higher liability by accepting a higher premium for payment of compensation to a third party, 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." We are of the view that the stand of insurance company is correct to say that it has limited liability to the extent of Rs. 1,50,000.
(3.) LEARNED counsel appearing for the claimants-respondents says that this arguable point could have been raised before the Tribunal earlier or even now, upon notice to the owner so that the claimants should not be made to suffer under benevolent piece of legislation. This is an appeal of 1988. This Court cannot wait indefinitely. We have been told that the principal amount of Rs. 1,50,000 has already been deposited which has been withdrawn by the claimants, therefore, the rest amount on account of interest is directed to be deposited upon calculation within a period of fortnight from this date, which will be released in favour of the claimants within a period of one week thereafter. However, so far as the rest of the amount of principal sum awarded by the Tribunal is concerned, the matter is remitted back for this limited purpose with a direction to the Tribunal to consider such cause upon notice to the owner and giving adequate opportunity of hearing and dispose of the same preferably within a period of 2 months from the date of communication of this order with a formal application by the claimants.;