N.P. Gupta, J. - (1.) THIS appeal has been filed by the owner against the award of the Motor Accident Claims Tribunal, Pali dt. 20.09.1995, passed in Claim Case No. 120/89 awarding the compensation of Rs. 68,625/ - for personal injuries to the claimant, and holding the insurer liable to the extent of Rs. 15,000/ -, and fastening the remaining liability on the owner and driver.
(2.) THE necessary facts are, that the claimant respondent Sajjan Raj along with the deceased friend Kamlesh Kumar was travelling in Jeep No. RRT -6945, which jeep met with an accident near village Balrai, on account of negligent driving of the jeep by driver Devendra Kumar, as a result of which the driver lost balance, and the jeep hit against the Neem tree, and then overturned. Sajjan Raj received injury and Kamlesh Kumar died. With these averments claim petition had been filed claiming compensation in the sum of Rs. 1,27,500/ -. In para -10 of the claim petition the present respondent No. 3 who was impleaded as defendant No. 3 in the claim petition was pleaded to have issued insurance cover on 28.04.1989. The insurer admitted the vehicle to be insured with it. However, the claim as such was denied on various grounds. Then, in additional pleas it was contended, that the driver was not having valid driving license, the company complies with the provisions of Sections 147 and 149 of the Motor Vehicles Act, and is entitled to contest the claim according to the terms of the policy. The learned trial Court framed various issues. Issue No. 1 related to negligence, and the claimant receiving injuries. Issue No. 2 was about ownership and insurance of the jeep, and issue No. 3 was as to whether the claimant is entitled to get compensation of Rs. 1,27,500/ -, or any other amount. Then, issue No. 4 was about driver having valid licence. Learned trial Court decided issues in favour of the claimants. However, while deciding issue No. 3, it found the claimants entitled to Rs. 68,625/ -. Then, the Tribunal went on examining the question of liability of the insurer, as it was contended by the insurer that its liability is limited to Rs. 15,000/ -, and reliance was placed on the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Jugal Kishore reported in : 1988(1) SCC 626. The learned Tribunal held, that since the accident occurred on 12.05.1989 undisputedly the question is to be decided on the basis of law laid down by the Hon'ble Supreme Court, as to whether the liability is unlimited, or statutory liability prescribed under Section 95(2), and in case statutory liability is sought to be distinguished to be beyond the limits prescribed in Section 95(2), the specific contract is required to be there between insurer and the owner, and for that premium should have been paid separately. It was contended before the learned Tribunal, that since in the reply no pleading has been raised by the insurer, about liability of insurer being limited objection cannot be allowed to be raised. In this regard it was held by the learned Tribunal, that it is a legal plea, which was not required to be pleaded. Then, in para -16 of the reply the insurer has referred to Section 140 of the Motor Vehicles Act which was not in force on the date of accident. Then, reliance was placed on the judgment of Hon'ble Madhya Pradesh High Court in United India Fire and General Insurance Co. Ltd. v. Natwarlal reported in : 1988 A.C.J. 956(M.P.), and that of Jammu & Kashmir High Court in New India Assurance Co. Ltd. v. Harmat Begum reported in : 1993 ACJ 1281. Then, the evidence of N.A.W. 2 Anand Sharma, produced by the insurer, was considered, who had proved the certified copy of the insurance policy. He deposed that for third party liability maximum limit was Rs. 50,000/ -, and for passenger it is upto Rs. 15,000/ - upto six passengers in the maximum. It was admitted that it is a comprehensive policy. He has deposed, that the original policy goes to the insured, and only second copy remains with them. On being confronted with the policy, he admitted that in another file by clerical mistake endorsement about liability did not come to be mentioned in the policy produced in the another file, but in the present file there is a schedule of premium, which is the same in both the files, wherein Rs. 72/ - has been charged as premium for six passengers, @ Rs. 12/ - per passenger, and Rs. 8 have been charged for insurance of driver/cleaner, and since there is no doubt or discrepancy regarding schedule of premium in both the files, relying on the judgment of the Hon'ble Supreme Court in New India Insurance Co. v. Smt. Shanti Bai reported in, 1995 DNJ (SC) 106, wherein contention about charge of extra premium in the policy was found to be an error, it was held that according to tariff prevalent, premium of Rs. 12/ - per passenger was for the statutory liability upto Rs. 15,000/ -, and for unlimited liability the premium of Rs. 50/ - was to be paid. In that case the premium paid was Rs. 12/ - per passenger, and relying upon the judgment in National Insurance Co. Ltd. v. Jugal Kishore, limit of liability was held to be Rs. 15,000/ -. It was found, that in the present case also premium of Rs. 12/ - per passenger has been charged, which clearly shows that liability of insurance was limited. Various other judgments, apart from the judgments referred to above were considered, and it was held, that the insurer is liable to the extent of Rs. 15,000/ - only. From the above recitals of the judgments it appears, that two claim petitions were filed, arising out of the same accident. Other one appears to be for compensation in regard to death of Kamlesh Kumar.
(3.) LEARNED Counsel for the insurer at the opening of the arguments relied upon and referred to the judgment of this Court in Ram Lal v. Hasti Mal reported in, 2005 R.A.R. 410 (Raj.) passed in C.M.A. 398 of 1996 decided on 04.10.2004, and submitted, that that was the appeal filed by the present owner, against the award passed by the learned Tribunal in other case, being that of compensation on account of death of Kamlesh Kumar. He also submitted, that in that case also the question of limit of liability was also raised in this Court, and this Court in para -5 negatived the contention of the present appellant, who was represented in that appeal also by the same learned Counsel, and held that the insurance company is liable to pay the compensation to the extent of Rs. 15,000/ - only, and the appeal was dismissed.;