NATIONAL INSURANCE Vs. ROY GEORGE

JUDGEMENT

(1.) This reference to a Full Bench has been made by a Division Bench of this Court doubting the correctness of the judgment of another Division Bench in New India Assurance Co. Ltd. v. Thankamani & others (1984 ACJ 791 (Ker.)). The learned Judges felt that the above decision could not be treated as good law in view of the decisions of the Supreme Court in National Insurance Co. Ltd. v. Jugal Kishore ( AIR 1988 SC 719 ) and M.K. Kunhi Mohammed v. P. A. Ahmed Kutty and Others ( AIR 1987 SC 2158 ). The point in these cases related to the defences that are open to an Insurance Company under S.96(6) of the Motor Vehicles Act, 1939. The appeal before us is by the National Insurance Co. Ltd. Of coarse, during the course of the hearing of this appeal, learned counsel for the respondents has sought to sustain the award passed by the Tribunal on certain other grounds.

(2.) The facts of the case are as follows: The deceased, who was aged 57 years at the time of the accident, was killed on 25-11-1981 while travelling as a passenger in a stage carriage bus. The accident occurred on account of the negligent driving of the driver of the said vehicle. The name of the owner of the vehicle is Smt. Panchami. The claimants before the Tribunal were the legal representatives of the deceased. They filed OP(MV) 1101 of 1983 on 12-4-1982-claiming Rs.42,600/- as damages, making the assessment on the basis that the deceased was aged 57 years and was getting a monthly salary of Rs. 1,685/- from his employer. After conducting an enquiry, the Tribunal found that the driver was negligent and that the owner of the stage carriage bus was, therefore, liable and also that consequently the appellant insurance Company was also liable for the aforesaid sum of Rs.42,600/-. Before the Tribunal, the Insurance Company contended that its liability should have been restricted to the extent covered by S.95(2) of the Motor Vehicles Act, 1939 which, at the relevant time on 25-11-1981, was only Rs.5,000/- as per the provisions of S'.95(2)(b)(ii) the limit was later raised to Rs.15,000/- with effect from 1 10-1982 by Act 47 of 1982 and it has now become an unlimited liability under S.147(2)(a) of the Motor Vehicles Act, 1988 which has come into force with effect from 1-7-1989). The contention of the Insurance Company was rejected by the Tribunal on the ground that the same was contrary to the decision of this Court in New India Assurance Co. Ltd v. Thankamani and Others (1984 ACJ 791 (Ker.)) above referred to. It is against the said judgment that the present appeal has been preferred by the Insurance Company.

(3.) In this appeal, it is contended on behalf of the Insurance Company by Sri.S.B. Premachandra Prabhu that the view taken in Thankamani's case (supra) is no longer good law in view of the two decisions of the Supreme Court referred to above and that the defences enumerated in S.96(6) are not relevant for the purpose of this case. According to him, the defences that may be taken by the Insurance Company are limited only if the Company wants to avoid the policy totally, but if the Insurance Company wants to claim that its liability is restricted to the statutory limits mentioned in S.95(2), such a defence is not prohibited by the provisions of S.96(6) of the Act