NEW INDIA ASSURANCE COMPANY LIMITED Vs. VITHAL

JUDGEMENT

(1.) HEARD the learned counsel for the appellant Sri k. Suryanarayana rao and Sri g. g. chagashetty, learned counsel for the respondents. this appeal arises from the judgment and award given by the tribunal in mvc case No. 98 of 1997, which has been decided by the tribunal along with other mvc cases. There is no dispute about the amount of compensation assessed nor is there any dispute about the cause of accident. On behalf of the insurance company it has been contended that the tribunal has erred in law in holding that the liability of the insurance company was in full with reference to the amount of compensation awarded and in directing the appellant-insurer to pay the balance amount of compensation, though Rs. 15,000/- has already been paid out, of the sum of Rs. 25,000/- awarded. The learned counsel contended that the tribunal erred in holding that the liability of the insurance company to pay the compensation amount is 100%. In support of this contention the appellant's learned counsel sought to rely on the decision of the Supreme Court in the case of motor owners' insurance company limited v jadavji keshavji modi and others. Without going into the details of his arguments suffice it is to say that this point is concluded and covered by the latest decision of the Supreme Court in the case of m. k. kunhi mohammed v p. a. ahmedkutty and others, and the decision of their lordships in the case of new India assurance company limited v Smt. Shanti bai and others. In the case of m. k kunhi mohammed, supra, while dealing with the case of the Allahabad high court their lordships of the Supreme Court observed that "the high court of Allahabad in new India assurance company limited v mahmood ahmad, the High Court of Bombay in shivahari rama tiloji v kashi vishnu agarwadekar, and the High Court of Patna in national insurance company limited v shanim ahmad, and in tara pada roy v dwijendra nath sen, have overlooked the cumulative effect of sub-clauses (1), (2) and (3) and of sub-clause (4) of Section 95 (2) (b) (ii) of the act. They have failed to give effect to Section 95 (2) (b) (ii) (4) of the act. we are of the view that these decisions do not lay down the correct view. we may, however, state here that in noor mohammad v phoola rani and in raghib nasim v naseem ahmed , two division benches of the Allahabad High Court have construed the provision in question as we have done in this case". Thus it appears that the decision in the case of mahmood ahmad, supra, on which the tribunal has placed reliance along with other decisions of Bombay and Patna high court have been held to be laying down incorrect law. The Supreme Court has approved the subsequent decision of the Allahabad High Court in noor mohammad's case, supra, in which the law has been laid down by the division bench. After referring to p. b. kader's case, their approval in the decision in the case of jadavji keshavji modi, supra, their lordships of the Supreme Court took note of the amendment made in Section 95 by the act 47 of 1982. Their lordships observed in paragraph 8 as under.

(2.) WITH these observations this appeal is allowed and the award is modified indicating the liability of insurer to Rs. 15,000/- only and balance of compensation is to be paid and held to be payable by owner of vehicle. There will be no order as to costs.