P. R. Raman, J. - (1.)The New India Assurance Company Limited, Changanacherry represented by its Assistant Manager is the appellant. The appellant is the insurer of an autorickshaw, which hit a pedestrian walking on the road, who ultimately succumbed to the injuries. The dependants namely the wife, children and parents of the deceased filed claim petition before the Motor Accidents Claims Tribunal, Kottayam as OP (MV) 562/1989 for compensation. It was contended that the accident occurred as a result of the negligence of the driver of the autorickshaw, who was arrayed as 1st respondent in the Tribunal and the owner of the autorickshaw was arrayed as the 2nd respondent. The Tribunal found that the accident occurred as a result of the negligence on the part of the autorickshaw driver. It proceeded to quantify the compensation awardable in the case and a total amount of Rs.2,32,000/- with 12% interest was awarded and the Insurance Company was directed to deposit the amount.
(2.)The Insurance Company in the written statement specifically pleaded that it is only an Act Policy and as per S.95(2) of the Motor Vehicles Act 1939, which was applicable to the case, the date of accident being 15/8/87, the maximum liability of the Insurance Company is limited to Rs.50,000/-. The policy was produced by the claimant himself and marked as A10 in the case. But the Tribunal held that in the absence of the proposal and the declaration produced by the Insurance Company, the limit of the liability as pleaded by them could not be substantiated. It further held that by virtue of an amendment brought out in 1982, the limit of the liability has been enhanced to Rs.1,50,000/-. In those circumstances, the entire liability was fastened on the Insurance Company. Hence this appeal.
(3.)We have perused the policy produced in the case. As per the policy, which is the contract of insurance between the owner of the vehicle and the Insurance Company, it can be seen that as far as the liability of the third parties are concerned, it is specifically provided that the limit of liability is subject to the limit of liability as laid down in the Motor Vehicles Act and that the Insurance Company will indemnify the insured in the event of the accident caused by or arising out of the use of the Motor Vehicle in a Public place in India within the meaning of the Motor Vehicles Act, 1939 against such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939. Again in Clause 4 of the conditions, it says that except so far as is necessary to meet the requirements of S.95 of the Motor Vehicles Act, 1939, the Company shall not be liable in respect of death of or bodily injury to any person other than a passenger carried by reason of or in pursuance of a contract of employment being carried in or upon or entering or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises. True that an amount of Rs.90 has been paid as an additional premium. The Tribunal thought that the additional premium will make the policy as an unlimited one. What has been paid as additional premium is towards passenger's legal liability premium. Being an autorickshaw, in order to cover three passengers additional premium was collected. There is nothing in the policy to indicate that there is any special contract entitling the owner of the vehicle to be indemnified in excess of the statutory liability as fixed under the Act. As the law stood as on the date of the accident, in this case, the limit of the liability was only Rs.50,000/-. The amendment in 1982 is only to S.95(2)(a) which applies only to goods vehicle. In the present case it is a passenger vehicle and the maximum liability as per the Act is only Rs.50,000/-. If so, the Tribunal erred in fixing the liability on the Insurance Company in excess of the statutory liability under S.95(2). In this case, we may also refer to a Constitution Bench decision of the Apex Court in New India Assurance Co. Ltd. v. Jaya, 2002 KHC 127 : 2002 (1) KLJ NOC 39 : 2002 (2) SCC 278 : AIR 2002 SC 651 : 2002 SCC (Cri) 325 : 2002 (1) MPLJ 578 : 2002 (2) Mah LJ 6 : 2002 (1) KLT 596 wherein it was held that in case of an Insurance policy not taking any higher liability by accepting a higher premium, the liability of the Insurance Company is neither unlimited nor higher than the statutory liability fixed under S.95(2). In Para 18 of the aforesaid judgment, it was found that the appellant Insurance Company in that case, the liability is only for an amount of Rs.50,000/-.