M.Y.EQBAL, J. - (1.) THE appellant Oriental Insurance Company Limited has filed this Letters Patent Appeal against the Judgment dated 1.2.1994 passed by learned Single Judge in Misc. Appeal No. 77/1992 (R), whereby the appeal was allowed and it was held that the entire amount of compensation is payable by the appellant/Insurance Company.
(2.) THE facts of the case lies in a narrow compass. The claimant-respondents filed Title (Motor Vehicle) Suit No. 58 of 1989 before the Accident Claims Tribunal, Dhanbad claiming compensation on account of death of her husband in a motor vehicle accident. The deceased husband of the claimant namely. Shiban Kumar Sarkar was going to Sudamdih from Jharia by his motor cycle and when he reached near Shalimar, a truck bearing Registration No. BRY 7343 came with high speed and dashed his motor cycle causing his instantaneous death. The respondent No. 1, owner of the truck contested the claim by filing written statement. Besides other defence, it was stated that at the relevant time the truck was insured with the appellant Oriental Insurance Company bearing Policy No. 33273/3/217/MV/4370/88/TP. The appellant-Insurance Company also filed written statement taking various defence including that its liability was strictly limited to the terms and conditions and the exceptions of the policy and also to the provisions of the Motor Vehicles Act. The Tribunal awarded a sum of Rs. 2,88,000/- by way of compensation and held that both the defendants respondents namely, the owner and insurer of the vehicle will be jointly and severally liable to pay the said amount of compensation. The Tribunal further directed that out of total compensation, a sum of Rs. 1,50,000/-shall be paid by the Insurance Company and the balance amount, shall be paid by the owner of the vehicle.
(3.) AGGRIEVED by the judgment and award the owner of the vehicle filed the appeal before this Court under Section 110D of the Motor Vehicles Act. 1939 being Misc. Appeal No. 77/92 (R). In the said appeal the respondent Insurance Company filed an application Under Order 41, Rule 27 of the Code of Civil Procedure praying the Court to allow it to adduce premium register and money receipt by way of additional evidence. In the said application it was contended that the original insurance policy was in the custody and possession of the owner of the vehicle. A counter-affidavit was also filed by the Insurance Company stating inter alia that in the written statement the company took the defence that the liability is strictly limited to the requirements of the Motor Vehicles Act i.e. to the extent of Rs. 1,50,000/-. Before the Misc. Appeal No. 77/92 (R) was taken up for final hearing, learned Single Judge passed the following order on 7.1.1994, which reads as under:-- "Heard learned counsel for the appellant and the respondent Insurance Company. A counter affidavit has been filed in this case but the Insurance Company has failed to file a copy of the insurance policy. Let this case be placed on 12.1.1994 as first case, on which date a further affidavit must be filed enclosing the copy of the insurance policy. If the respondent Insurance Company fails to do so. then serious view will be taken in the matter." ;