UNITED INDIA INSURANCE CO LTD Vs. BEENA

JUDGEMENT

(1.) THE parties to the above two appeals and the subject matter of the appeals are one and the same. Hence, both the appeals are heard together by consent of both parties. M. F. A. No. 35/91 has been filed by the insurance Company which is 3rd respondent before the Motor Accidents Claim tribunal. THE Insurance Company filed the above appeal against the award of the tribunal awarding and fixing a total compensation of Rs. 83,000/ -. Since a sum of Rs. 14,500/- has already been paid by the owner of the vehicle under Exts. B1 to B5, the balance alone was directed to be paid (Rs. 68,500) by the insurance Company. It is contended by the Insurance Company that under Ext. B7 the liability for Insurance Company is only Rs. 50,000/- and, therefore, the award, by which the Tribunal directed the Insurance Company to pay the entire amount of compensation, is illegal. THErefore, it is contended that the award of the Insurance Company in so far as it exceeds Rs. 50,000/- is bad in law.

(2.) M. F. A. No. 663/91 has been filed by the claimant impleading the driver, owner of the vehicle and the Insurance Company as respondents 1 to 3 respectively. According to the claimant, she filed an application claiming compensation for the injuries sustained by her in the accident which took place on 22. 9. 1986. She averred that in the accident she sustained serious injuries and was hospitalised for months together and a number of major operations were performed on her. The vehicle involved in the accident is a stage carriage bus bearing Reg. No. KLM 1724. The claimants claimed a sum of Rs. 2,50,000/- as compensation. The claimant was examined as pw1. Exts. Al to All were marked on the side of the claimant. No oral evidence was adduced by the driver, owner or the Insurance Company. Exts. B1 to B7 were marked on the side of the respondents before the Tribunal. The Tribunal, on a consideration of the materials placed on record, and considering the nature of injuries and the period of treatment undergone by the claimant, fixed a total compensation of Rs. 83,000/- and after giving a credit to a sum of Rs. 14,500/-paid by the owner under Exts. B1 to B5, fixed the liability at Rs. 68,500/- on the Insurance Company. We have perused the entire cause papers and also the award of the Tribunal and the Exhibits filed before the Tribunal. Ext. Al is the treatment certificate dated 23rd February, 1990 filed in O. P. No. 245/88. It reads as: "the above mentioned patient was admitted here on 22. 9. 86 after an alleged road accident. Injury Extensive compound multiple bone fracture of her left leg with almost complete traumatic amputation of just below the knee and also foot drop due to lateral popliteal nerve injury. Peripheral circulation was doubtful and it appeared as if she might lose her leg. Treatments given 22. 9. 86 : Emergency wound clearance operation and bone fractures were fixed using steel plates. 2. 10. 86 Skin grafting operation. 13. 11. 86 Long leg plaster given. 15. 11. 86 Discharged 10. 12. 86 Admitted, plaster removed, wounds cleaned and a walking plaster applied 23. 12. 86 Discharged 6. 2. 87 Admitted 10. 2. 87 Bone plate and screws removed by operation due to persistent infection. X-ray showed signs of non-union at tibia. Long leg walking cast reapplied. 25. 2. 87 ~ Discharged with crutches for partial weight bearing. 21. 7. 87 : External wounds healed. Long leg metalic brace given instead of plaster. Foot drop has recovered. 24. 11. 87 ~ Admitted and sequestrectomy operation done. 27. 11. 87 ~ Discharged. 29. 4. 88 ~ All external wounds have healed well. 25. 10. 88 : X-ray taken showed cross union of the distal fibula to proximal tibia and this has enabled her to walk unsupported. There is shortening of the leg by 1" which is compensated by an equines contracture at the ankle. 27. 10. 89 : X-ray taken shows that the cross union has consolidated. Non-union of tibia persists. She is able to walk unsupported. Comments: She has now a disability of 40% due to shortening, scarring and limping". The above certificate clearly shows that the claimant has sustained extensive compound multiple bone fracture of her leg with almost complete traumatic amputation of just below the knee and also foot drop due to lateral popliteal nerve injury. She was in the hospital for several months. Bone plate and screws were removed by operation due to persistent infection. X-ray showed signs of non-union at tibia. There i s shortening of the leg by 1" which is compensated by an equines contracture at the ankle, and that the claimant has a disability of 40% due to shortening, scarring and limping. Before the Tribunal other documents were also filed.

(3.) UNDER Ext. B7, the liability of the Insurance Company is limited to only Rs. 50,000/ -. The liability of Rs. 50,000/-has been clearly mentioned in the policy. UNDER S. 95 sub clause (2) (b) (i) the liability is limited to Rs. 50,000/- in all, in respect of persons other than passengers carried for hire or reward. In this case, the claimant was standing at the bus stand waiting for the bus. She, therefore, comes under the category mentioned in S. 95 sub clause (2) (b) (i ). Learned counsel for the bus owner contended that since it is a comprehensive policy the liability of the Insurance Company is unlimited and, therefore, the Insurance Company is liable to pay the entire compensation awarded. We are unable to accept the above contentions of the learned counsel for the owner of the vehicle. The Supreme Court in New India assurance Co. Ltd. v. Shanti Bai and Ors. (1995 (1) ACJ 470) in an identical case held that in view of the comprehensive policy, the liability of the Insurance company is only to the extent as per the Statute and the comprehensive insurance does not automatically cover the liability with regard to third party risk for an amount higher than the statutory liability, and that any entitles the owner to claim reimbursement for loss and damages to the vehicle.