OM PRAKASH Vs. N I A CO LTD

JUDGEMENT

(1.) HEARD learned Counsel for the appellant. This appeal is directed against the judgment passed by learned single judge dated 13.8.2001 allowing the appeal filed by the New India Assurance Company Ltd. holding that liability on the Company under the policy issued to the insured was limited to Rs. 15,000/ - per passenger and it cannot be held liable beyond that limit. The accident occurred on 4.2.1989 when the Motor Vehicles Act, 1939 was in force and therefore, the case has been examined by learned single judge, with reference to decisions of the Supreme Court in National Insurance Company v. Jugal Kishore : [1988]2SCR910 and New India Assurance Company Ltd. v. Shanti Bai and Ors. reported in : [1995]1SCR871 wherein the apex court has held that liability of the Insurance Company shall have to be determined as per the provisions of Motor Vehicles Act, as prevalent on the date of accident. In the instant case, the vehicle involved in the accident is the vehicle in which passengers were carried for hire. The jeep was registered as taxi jeep and the premium charged by the appellant was Rs. 84/ - for 7 passengers at the rate of Rs. 12/ - per passenger. The learned single judge came to the conclusion that the liability of the insurance company was not fully co -extensive with that of the owner. The liability of the insurer was limited to Rs. 15,000/ - as was apparent from the cover note produced before the Tribunal against which no other evidence was led by opposite party. As per that evidence, premium was charged @ Rs. 12 per passenger and therefore, liability was limited to Rs. 15,000/ - per passenger. With these facts the case was squarely covered by decision of this Court in Oriental Insurance Co. v. Varda Ram 1994 DNJ (Raj.) 619 in which the Court held in like circumstances that the liability of the insurer was limited to Rs. 15,000/ -per passenger.

(2.) HOWEVER , Hon'ble Supreme Court in the case of New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani and Ors. : [1964]7SCR867 has held that the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis -a -vis the third parties, in view of the provisions of the Act. Once the company had undertaken liabilities to third parties incurred by the persons specified in the policy, the third parties right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy. If the amount recovered from insurer is in excess of liability to identify the owner, he can recover such excess from the insured. Relying on this principle the learned Single Judge while permitted the recovery from Insurance Company, but permitted the Insurance Company to recover the amount paid by it in excess of Rs. 15,000/ - per passenger, from the insured.

(3.) THE learned Counsel for the appellant has urged before us that the owner remained ex -parte. Therefore, any evidence could not be led to rebut the evidence led by Insurance Company and that in the absence of clear pleading to that effect the learned single judge was not justified in limiting the liability of Insurance Company to Rs. 15,000/ - only.