TUSHER KANTI MUKHERJEE Vs. MEENA SINGH

JUDGEMENT

(1.) HEARD the parties. This appeal has been filed by owner of Matador (BHH-8304), which was involved in a motor accident dated 16.3.1988, challenging part of impugned judgment and award dated 15.4.1993, passed in Misc. Judicial Case No. 81 of 1988, whereby he was asked to pay Rs. 65.200/- as compensation under the Motor Vehicles Act. 1939, to the claimant- respondent No. 1 herein. The appeal was hopelessly barred by time and so petition for condonation of delay has been filed. In the present case, owner appeared in the claim case but for some reason did not contest. However, after final award was made, he filed an application for review of the order/award, whereby he was asked to pay part of compensation amount and Insurer was directed to indemnify his liability to the extent of only Rs. 50,000/-. The said Review application was entertained, but was ultimately rejected on 30.7.1998. So, initially the present appeal was filed against the said order, which, in my opinion, was not maintainable. However, in view of patent illegality committed by the tribunal in not asking the Insurer to indemnify entire liability of the owner for payment of compensation under the Act, on 23.2.2001 the appellant was permitted to challenge the judgment and award dated 15.4.1993 in this appeal. Accordingly, necessary corrections were made in the memorandum of appeal. certified copies of judgment and award under appeal were filed, further stamp report was made and a separate application for condonation of delay under Section 5 of the Limitation Act. 1963, in filing the appeal was filed. In special circumstance of the case mentioned above. 1 condone the delay in filing appeal.

(2.) ADMITTEDLY , in a motor accident dated 16.3.1988, one Santosh Kumar Singh lost his life, when he was dashed by a Matador (BHH- 8304). The accident took place for the fault of driver of Matador. The said vehicle was in sured with Oriental Insurance Company. The Tribunal in the impugned judgment and award assessed a sum of Rs. 1,15,200/- pay able as compensation to the claimant, who was widow of the deceased. However, out of" the said amount, insurance company was directed to indemnify only Rs. 50,000/- and rest amount, i.e. Rs. 65.200/- was directed to be paid by owner. The Insurance Company policy was brought on record before the tribunal. A perusal of the said policy reveals that besides extra premium of Rs. 144.00 for covering risk of 12 passengers, a premium of Rs. 100/- was also paid for increased third party limit. It shows that there was a special contract to cover unlimited liability in respect of third party risk between the owner of the vehicle and the Insurance Company. A premium of Rs. 144/- was paid separately in respect of 12 passengers. Further, a premium of Rs. 100/- was also paid to cover third party limits, so, in my opinion, the Tribunal com mitted an error of record in holding that Insurance Company was responsible to in demnify owner's liability only to the extent of Rs. 50,000/-, i.e. the statutory liability under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939, ignoring the fact that separate premium has paid to cover increased third party limits. So, I hold that Insurance Com- pany was responsible to indemnify the entire liability of owner and pay amount of compen- sation granted to the claimant. Accordingly, this appeal is disposed of with the aforesaid modification in the impugned judgment and award.