NATIONAL INSURANCE CO LTD Vs. CHAMPA DEVI

JUDGEMENT

(1.) THE appellant -insurance company raises a very small question by this appeal against the judgment and award passed by the Tribunal under the M.V. Act awarding Rs. 42,000 (Rupees forty -two thousand) as compensation to respondent No. 1, a third person, widow of the deceased. By the mini bus, bearing No. BHN 5621, belonging to respondent No. 2, Sri Mehta Madan Lal, the husband of the claimant, respondent No. 1, sustained injuries on March 8, 1976, in the morning at Ratu Road which resulted in his death.

(2.) LEARNED advocate, appearing for the appellant, raised only one point that under the provisions of Section 95(2)(d) of the M.V. Act, the liability of the insurance company is limited only to the extent of Rs. 2,000 (two thousand) as the deceased was not a passenger in the bus in question but was only a pedestrian, that is, he was a third party. It is not possible to accept this contention as apart from the fact that Clause (d) of Sub -section (2) of Section 95 of the said Act speaks or "damages to any property of any third party". Sub -clause (i) of Clause (b) thereof clearly provides for awarding compensation in respect of a third party, that is, persons other than passengers carried in the vehicle which was Rs. 20,000 (twenty thousand) before the amendment of the year 1969 and is Rs. 50,000 (fifty thousand) thereafter. The occurrence in question had taken place after this amendment. As held by the Supreme Court in the case of Padma Srinivasan V/s. Premier Insurance Co. Ltd., AIR 1982 SC 836 ; [1983] 53 Comp Cas 333, the date of the occurrence would be relevant for the purpose of determining the quantum of compensation, it has got to be held that the case of the present claimant is covered by the above provision made in Clause (d), which has been inserted subsequently in -the 1939. Act, makes the insurance company further liable to pay in respect of damages to property to the extent of Rs. 2,000 (two thousand) only. The learned counsel, however, placed reliance upon the case of Manjushri Raha V/s. B.L. Gupta, AIR 1977 SC 1158, which was also followed by a Bench of this court, to which one of us, H.L. Agrawal J., was a party in Miscellaneous Appeal No. 188 of 1974, where no doubt an observation has been made that "in absence of any, contract to the contrary, the statutory liability of the insurer to indemnify the insured in the case of a vehicle allowed to carry more than six passengers, extends only up to Rs. 2,000 in respect of each passenger and the total liability would not go beyond Rs. 20,000". But it appears that the attention of the learned judges of the Supreme Court was not drawn to the provision of Clause (b) mentioned above. Be that as it may, as there was no other decision at that time, this court was bound to follow that decision in Miscellaneous Appeal No. 188 of 1974. But now the learned counsel for the claimant has cited, apart from Padma Srinivasan V/s. Premier Insurance Co. Ltd., AIR 1982 SC 836 ; [1983] 53 Comp Cas 333, another case of Motor Owners Insurance Co. Ltd. V/s. Jadhavji Keshavji Modi, AIR 1981 SC 2059 ; [1982] 52 Comp Cas 454, where compensation was given with reference to the provisions of Clause (b) of Sub -section (2) of Section 95 of the aforesaid Act.

(3.) IN the result, the appeal is allowed in part in view of the apportionment of the amount of compensation as mentioned above and the award of the Tribunal is modified accordingly. In the circumstances of the case, however, I shall not make any order as to costs.