- (1.) THIS appeal, by the appellant Insurance Company, is directed against the judgment and award dated 20th January. 1998 passed by 3rd Additional District Judge -cum -Motor Vehicle Accident Claims Tribunal in MJC (Compensation) No. 2/89. whereby a total sum of Rs. 51,280/ -was awarded to the claimant -respondent for the injury caused to him in a motor vehicle accident.
(2.) THE undisputed facts are that on 5.4.89 the claimant was coming from Jamshedpur as a passenger in a vehicle bearing No. BPX 932, which was coming from Bistupur -Jamshedpur. When the vehicle crossed Kolabira Railway subway, because of the high speed, it took a turn, as a result of which the vehicle dashed the bridge and fell down in the Nala causing serious injury to all the passengers travelling in the said vehicle. The claimant also sustained injury, as a result of which his right hand was broken. The claimant, therefore, claimed compensation on account of medical expenses, paid and sufferings etc. due to said injury. The appellant -Insurance Company, in this appeal, only challenged that part of the award whereby the entire liability has been fixed upon the Insurance Company, although in the policy the liability of the Insurance Company was limited. A copy of the policy of Insurance was filed and the same was marked as Ext. 3. It is worth to mention here that the owner of the vehicle did not furnish any paper or other documents claiming that the entire liability goes to the Insurance Company, Before deciding the issue raised by the appellant, it would be useful to refer para 14 of the judgment passed by the Tribunal, which reads as under: - - '14. The learned counsel for the Insurance Co. has submitted that the Act. 1988 came into force in Bihar on 1.7.1989 vide S.O. 368 (E) dt. 22.5.1989. In the instant case the date of accident is 5.4.1989 and the accident took place priorto commencement of this Act in Bihar i.e. on 1.7.1989. Therefore. Act. 1988 will not be applicable in this case. So far the insurance policy is concerned, the policy was issued on 24.2.1989 and from the date of issuance of policy four months will apply but in the instant case the date of accident is 5.4.1989 and the claimant's claim was filed on 25.9.1989 i.e. after expiry of four months. Therefore, the policy does not cover the risk, according to the Insurance policy the liability of the Insurance Co. is only for Rs. 15,000/ -. That the learned counsel for the Insurance Co. has further submitted that where there is no special effect between the Insurance Co. and the vehicle to cover unlimited liability in respect of an accident to a passenger and the premium which was paid by the owner @ Rs. 12/ - per passenger and it was clearly referable to the statutory liability of Rs. 15,000/ - passenger under Section 95 (2) (b) (ii) of the M.V. Act, 1989. It has been further submitted that the liability to passengers if the limit of liability of one passenger is Rs. 15000/ -, the rate of annual premium per passenger is Rs. 12/ - and i.e. in respect of unlimited liability and in the instant case policy covers only statutory liability of Rs. 15000/ - per passenger. In such case, from the fact that the insurance policy was comprehensive policy would be irrelevant because comprehensive policy only entitled to owner to claim reimbursement of entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the liability with regard to three policies rest become unlimit or higher than the statutory liability when for this period specific agreement is necessary which was absent in the present case. A reliance has been placed on the decision of the Hon'ble Supreme Court in New India Insurance Co. Ltd. v. Smt. Shanti Bai and Ors., AIR 1995 SC 1113, M.K. Kunihimohammed v. P.A. Ahmedkhutty, AIR 1987 SC 2158. In this context I am of the view that these rulings are not applicable in this case because no policy has been filed on behalf of the Insurance Co. to show that the policy is in existence. Ext. 3 is not a policy but it is schedule and this schedulehas been filed by the owner, not by the Insurance Co. There is no evidence on record to substantiate the contention of the Insurance Co. that the liability of the Insurance Co. is limited up to Rs. 15000/ - I have already stated that neither the original policy nor the certified copy of the same has been produced before this Court and no evidence has been led to reiterate that the claim on the Insurance Co. is only confined to the extent of Rs. 15000/ -. Hence. I hold that in the instant case the liability of the Insurance Co. is unlimited and old Act will be applicable in this case.'
(3.) FROM perusal of the aforementioned paragraph, it appears that the tribunal has committed serious error of law and fact in coming to the conclusion that the policy which was issued by the Insurance Company on 24.2.1989 was effective for four months from the date of issuance of policy. The Tribunal perhaps overlooked the proviso to Section 147 of the Motor Vehicles Act. 1988, Section 147 lays down the proviso of requirement of policies and limits of liability. Sub -section (2) of Section 147 is worth to be quoted hereinbelow: - - '(2) Subject to the proviso to Sub -section (1), a policy of insurance referred to in Sub -section (1) shall cover any liability incurred in respect of any accident, up to the following limits, namely: - - (a) save as provided in Clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousands : Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.' ;