- (1.) These two civil misc.appeals have been filed against the judgment and award dated 12.05.2003 passed by the Judge, Motor Accident Claims Tribunal, Kishangarh (Ajmer) in MAC Case No.314/1992. CMA No.1627/2003 has been filed by the claimant-Shri Manoj Jain, dissatisfied with the amount of compensation awarded by the learned Tribunal with a prayer to make suitable enhancement in the same whereas the CMA No.2158/2003 has been filed by the Insurance Company with a prayer that it has limited liability to make payment of amount of compensation to the extent of Rs.15,000/- only, but the learned Tribunal has wrongly held it liable to make payment of whole of the compensation amount awarded to the claimant. It is pertinent to note that the matter relates to the Motor Vehicles Act, 1939 (hereinafter to be referred as "the Act") as the accident occurred before the commencement of the Motor Vehicles Act, 1988. As these appeals arise out of the same judgment and award passed by the learned Tribunal, with the consent of learned counsel for the parties, they were heard together and are being decided by this common judgment and order.
(2.) Brief relevant facts for the disposal of these appeals are that the claimant-Shri Manoj Jain sustained injuries on 30.7.1988 when he was travelling as a passenger in the offending Bus (a passenger carrying vehicle) bearing registration No.RSB-1385 which met with an accident due to negligent and rash driving of the same by its driver respondent-Shri Sitaram. Claiming that as a result of the injuries sustained by him, his right leg was amputated above ankle, Claim Petition under Section 110-A of the Act was filed by him with a prayer an amount of Rs.11,80,000/- with interest may be awarded as compensation under various heads. The Insurance Company filed written reply with a specific averment that it has limited liability to the extent of Rs.15,000/- only in accordance with the terms and conditions of the insurance policy and the relevant provisions of the Act as according to the claimant himself he was travelling in the offending vehicle as a fare paying passenger at the time of the said accident. It is to be noted that owner and driver of the offending vehcle did not appear before the Tribunal despite due service of notice and exparte proceedings were taken against them. The plea taken by the insurance company was considered by the learned Tribunal under Issue No.3 and it came to a conclusion that an extra amount of Rs.40/- was obtained by the insurance company and, therefore, the company undertook to cover the risk of a third party to an unlimited extent and, therefore, it is liable to make payment of the whole of the amount to be awarded to the claimant as compensation. The question of quantum of compensation to be awarded to the claimant was considered by the Tribunal under Issue No.4 and a total amount of Rs.2,68,964/- and interest @ 9% per annum was awarded from the date of filing of the claim petition. As already stated, the claimant has filed the aforesaid appeal with a prayer to enhance the amount so awarded whereas the Insurance Company has filed the appeal with a prayer that its liability cannot exceed Rs.15,000/-.
(3.) It was submitted on behalf of the Insurance Company that although comprehensive policy was issued in favour of the owner of the offending vehicle, but only by that reason it cannot be said that the Insurance Company undertook to cover unlimited risk of a person travelling as a passenger in the offending vehicle as a comprehensive policy at the most covers the damage caused to the insured vehicle. It was further submitted that from the evidence available on record it is clear that the sitting capacity of the offending vehicle was 37 passengers in all and to cover the risk of these passengers Rs.1110/- were charged by the insurance company as premium and no extra premium was paid by the insured to make the liability of passengers unlimited, but the learned Tribunal without considering this aspect of the matter in a proper manner has wrongly held that as Rs.40/- have been obtained by the company as extra premium to cover the liability to public risk, it has liability to make payment of entire amount to be awarded to the claimant even if he was travelling in the offending vehicle as passenger. It was pointed out by the learned counsel for the Insurance Company that even if it is admitted that at the relevant time the normal charge of premium to cover the liability to public risk was Rs.200/- only and an extra amount of Rs.40/- was charged by it even then at the most it can be said that the unlimited risk of a third person other than a passenger travelling inside the offending vehicle and the driver and cleaner was undertaken. As in the present case admittedly the claimant was travelling in the offending vehicle as passenger and no extra premium was paid to cover the unlimited risk of the passengers, the liability of the insurance company was to the extent of Rs.15,000/- only.;