Someshwar Nath Pathak, J.
1. This appeal is directed against the order passed by Sri Prakash Rai, 4th Addl. District Judge-cm-Claims Tribunal, Vaishali at Hajipur. The respondent No. 1 was the applicant in the lower Court and she had preferred the claims case for death of her husband Harbansh Mishra who was travelling in Mini Bus bearing Regd. No. BHP 5858 on 7-7-1985 which met with an accident on Patna-Hajipur road. The deceased was an Engineer, although he was unemployed. The Insurance Company, which is the appellant before this Court and the owner and driver, all contested the Claim Case No. 35 of 1985 and, on evidence adduced by the parties, the Tribunal awarded compensation of Rs. 2,25,000/- which was to be paid by the Insurance Company. The appellant before this Court has confined this appeal by challenging the amount of compensation beyond Rs. 15,000/- (fifteen thousand) because the entire compensation money was directed to be paid by the appellant company. It was submitted before me that under Section 95(2)(b)(ii) of the M.V. Act, 1939, the liability of the Insurance Company was limited to Rs. 15,000/-, as per the premium paid by the owner of the vehicle. So, the liability to pay the rest of the compensation amount was on the owner and not on the Insurance Company. It was further submitted that since the owner failed to file the copy of the Insurance Policy, it was wrong on the part of the Tribunal to fix the liability of payment of the entire compensation amount upon the appellant Company.
2. Admittedly, copy of the Insurance Policy was not filed before the lower Court either by the Company or the owner of the vehicle. The owner of the vehicle contested the appeal and on his behalf it was submitted that the entire onus to prove the limited liability of the Company was upon the Company itself and not upon the owner. Since the Company failed to file the copy of the policy; the lower Court rightly directed the company to pay the entire consideration money.
3. In support of the contention of the owner, a decision of the Supreme Court, as reported in : [1988]2SCR910 , has been referred to and it has been submitted that the entire onus to file the Insurance Policy is upon the Insurance Company, as held by the Supreme Court in the aforesaid decision. However, I find that in the aforesaid case, the Tribunal had initially fixed an amount of Rs. 10,000/- as compensation money which was recoverable-from the Insurance Company and the owner holding their liability to be joint and several. However, on appeal, the High Court raised this compensation amount to Rupees one lac and fixed the liability to pay this amount on the driver, the owner and the Insurance Company. On appeal, by Special leave to the Supreme Court, the Hon'ble Supreme Court heard the appeal after directing the Insurance Company (appellant) to deposit the amount of Rupees one lac with the condition that once it was withdrawn by the claimants, the Insurance Company was not entitled to refund. The Hon'ble Supreme Court deprecated the tendency of both the owner and the Insurance Company in not filing the Insurance Policy just to delay or to defeat the claim of the applicant. However, the Hon'ble Supreme Court in the concluding Paragraph No. 11 of the judgment did not hold that the entire liability of payment of the compensation money lay upon the Company. The Court rather held that the liability of the Insurance Company was limited to Rs. 20,000/-, as per the premium paid to the concerned policy, The policy was filed in the Hon'ble Supreme Court itself. It would be worth while to quote Paragraph 11 of the judgment in order to meet the contention of the owner of the vehicle, as put up by the owner's lawyer before this Court. The concluding paragraph of the aforesaid judgment reads as under:
in the result, this appeal succeeds and is allowed to this extent that the liability of the appellant is fixed at Rs. 20,000/- together with interest as allowed by the High Court. In view of the order of this Court dated 14th September, 1984, quoted above. However, it is held that even if the total liability of the appellant fall short of Rupees one lac, it shall not be entitled to any refund out of the sum of Rupees one lac, which was deposited by it and withdrawn by the claimant-respondent in pursuance of the said order. Decree of the High Court, as against the driver and the owner of the vehicle, namely, respondent Nos. 2 and 3 is, however, maintained and all sums of excess of Rupees one lac, which has already been withdrawn by the claimant-respondent, as aforesaid shall be recoverable by him from the respondent Nos. 2 and 3 only. There shall be no order as to costs.
The aferesaid concluding paragraph of the apex Court (supra) clearly indicates that there is no ban on the Insurance Company to the filing of the Insurance Policy at the appellate stage and, even in the Supreme Court. The Hon'ble Supreme Court has not held that since the Insurance Policy was not fried by the Insurance Company in the trial Court, the entire liability to pay the compensation shall fall on its shoulder. In the reported case, the Supreme Court has apparently fixed the liability of the Insurance Company to the limit, as mandated by the Statute. Besides that, it has also saddled the owner and the driver with the amount over and above Ruppes one lac, which was fixed by the High Court for payment. Perhaps, this amount should be the amount of interest etc. So, I do not think the owner's liability shall be discharged simply because the Insurance Company does not file Insurance Policy in the trial Court. In a case where the owner appears and contests the claimant's case, the owner is very much liable for paying the compensation amount along with the Insurance Company as also the driver. The admitted position of law is that all the three, as mentioned above, are jointly and severally liable for payment of compensation. However, when the statute has fixed the limited liability upon the Insurance Company, as per the terms of the policy the rest of the amount of compensation has to be and must be paid by the owner of the Vehicle in question. There is no escape from this legal principle.
5. Now the next question is whether the liability of the Insurance Company (appellant) was a limited one in the instant case or was it unlimited. To ascertain this fact, it was the Insurance Policy which was to be Booked into. Admittedly the Insurance Policy was not filed in the trial Court either by the owner of the vehicle or the Insurance Company. In the instant case, the alleged accident took place on 7-7-1985. At that time, the M.V. Act, 1939 was in force. So, its provisions were applicable to the facts of the present case. The Insurance Policy was filed in this appeal by the Insurance Company. I shall refer to the policy later. At this stage, I am to refer to the contention of the owner of the vehicle, respondent No, 2, namely, Chandi Prasad LaJ Das to the effect that since the owner failed to file the Insurance Policy, it was the entire liability of the Company to pay the compensation amount. It was further submitted that it was not the onus of the owner to file the Insurance Policy. In this connection, I am of the considered and firm opinion that the owner is not wholly free from its onus to file the Insurance Policy and it has been seen above that in the reported case (supra), it was held by the Supreme Court that the owner was not free from its liability to pay the compensation amount, if the Insurance Company claimed its limited liability under the statute. From this, it would follow that the owner is not absolved of its duty to file the Insurance Policy in order to shift the liability of payment of the entire compensation amount to the company. Moreover, the owner of the vehicle is supposed to be in possession of the original copy of the Insurance Policy and the Company would be in possession of carbon copy of the Insurance Policy, whatever may be the number of the copies. So, I have no hesitation in holding that in a case in which the owner appears, it is he who is to file the Insurance Policy. However, in the instant case, it was pleaded by the owner's lawyer before this Court that as the accident took place on 7th July, 1985 and the owner was provided with the cover note of the Insurance Policy on 6-7-1985, the Insurance Policy was not in possession of the owner on 6th July, 1985, the same having not been provided by that time. So it was for the Insurance Company to file the Insurance Policy. But, it is to be noted that the claim case was preferred in the month of October, 1985 and the owner filed its W.S. in the year 1990. It is not understandable as to how with the passage of so much time, the owner will rest content with receiving only the cover note from the Insurance Company and not the Insurance Policy itself. I further find that the owner was examined as O.P.VV. Sand he admitted that his Mini Bus bearing Regd. No. BHP 5858 was insured by the Insurance Company and he was in possession of the papers regarding his policy. He had produced the cover note (Ext-A). At Paragraph 23 of his cross-examination, he has stated to this effect and at Paragraph 24 he stated that he did not get the Insurance Policy. He has submitted its number. From the aforesaid averments, it does not appear that the owner had received no paper of the Insurance Policy already made. It is not understandable how he will know the number of the Insurance Policy, if he did not get the copy of the Policy itself. So, the contention of the respondent (owner) that he did not file the policy because he was not in possession of the same, is neither acceptable nor convincing. The cover note (Ext-A) did not suggest that it contained any policy number of the Insurance Company. In such a circumstance, it is very much probable that the owner must have got the Insurance policy by the time he filed the W.S. or by the time he was examined in Court in the year 1993 (29-1-1993).
6. Now I shall advert to the Insurance Policy filed by the appellant in this Court in order to hold as to whether the liability of the Insurance Company was limited or unlimited. The Insurance Policy filed here was referred to by the appellant's lawyer and it was submitted that 30 passengers and three crew of the concerned vehicle were insured. The limited liability of Rs. 360/- for 30 passengers @ Rs. 12/- per passenger was paid as premium. So, the liability of the Insurance Company was limited under the Statute to Rs. 15,000/-. However, this Insurance Policy was criticised by the appellant's lawyer on the ground, firstly, that no Insurance policy number was mentioned in these papers. Moreover, this papers contained the endorsement 'Sd. Illegible'. So, these papers were not genuine nor the copy of the original insurance policy. Besides the above, the make of the vehicle, as mentioned in those papers, has, perhaps, been overwritten by type-writer. So, in the opinion of appellant's lawyer, the Insurance Policy filed by the appellant company is not reliable. However, I find that Bus No. (BHP 5858)very much tallies with the owner's vehicle, as mentioned in cover note (Ext-A). Type of the body of the vehicle as mentioned in the policy paper also tallies with the same mentioned in the cover note. The reference to the number of passengers and crew insured also tallies with cover note. The number of the cover note, as mentioned in the cover note and the policy paper filed by the appellant also is the same. Of course, the endorsement 'Sd. Illegible' makes these papers a bit of doubtful character; but in spite of this defect, the question is whether the Insurance Policy papers filed by the Insurance Company are reliable. In this connection it is to be mentioned that the total premium paid by the Company as per the papers filed, goes to Rs. 2240/-. The break up of the aforesaid amount has also been mentioned and it is like the following:
Rs. 240.00 Paid for liability to the public risk.
Rs. 24.00 As premium paid for the 3 members of the
crew of the vehicle (D+C+K).
Rs. 360.00 Paid for the risk of passengers @ Rs. 12/-.
Rs. 1616.00
Paid as premium for other kinds as mentioned under the Head-A on the left side of the Schedule.
The total amount, thus, goes to Rs. 2,240.00. The total amount of premium paid as per the cover note (Ext-A) also goes to Rs. 2,240.00. So, the liability of the Company for risk to passengers was, perhaps, of course, limited one, as per the statute; because, if its liability was unlimited, in that case, premium should have been paid for a greater amount than Rs. 360/-, as referred to above. In such a case, unlimited liability to the passengers as per the prevalent rules of tariff, Rs. 50/-should have been paid for each passenger and admittedly, as per the cover note, 30 passenger were insured. So, @ Rs. 50/-, the amount of premium paid for could come to Rs. 1,500/-. Adding the amount of Rs. 24/- for three members of the crew @ Rs. 8/-, the amount would come to Rs. 1524/-. The remaining amount of total amount of Rs. 2240/- would come to Rs. 716/-. But, the total payment, i.e. Rs. 2240/-, as per the cover note itself does not explain the amount of Rs. 716/- because under the Head-A, as per the entries in the left side of schedule, the amount is Rs. 1616/-. So, if the cover note filed by the owner himself in the lower Court, is seriously taken into consideration, the break up of the aforesaid amount regarding the payment of premium for risk to passengers etc. would tally with the same mentioned in the insurance papers filed by the appellant Company. So, even if the papers filed by the Insurance Company is ignored and the cover note of the owner is exclusively taken into consideration, in that case also, it would not transpire that the premium paid by the owner of the concerned vehicle for risk to passengers or for that matter any body else, including the owner, the liability of the company was unlimited and beyond statutory limit. So, I am to hold that in the facts and circumstances of the case, the liability of the appellant Insurance Company is to pay only Rs. 15,000/- to the claimant and it has already been paid.
7. In the result, there is no alternative but to allow this appeal. In the circumstances of the case, it 'is directed that the compensation amount fixed by the Tribunal over and above Rs. 15,000/- shall be paid by the respondent No. 2, the owner of the concerned vehicle. Perhaps, the trial Court has fixed the remaining compensation amount of Rs. 2,25,000/- after deducting the interim relief of Rs. 15,000/-. So, this amount shall be paid by the respondent No. 2, owner of the vehicle to the claimant. The judgment regarding interest etc. fixed by the Tribunal shall remain intact.
8. The multiplier used by the Tribunal was also assailed by the Insurance Company. The Tribunal used the multiplier '20' and prevalent multiplier on the relevant date was maximum '18'. However, in the facts and circumstance of the case, I am not going to interfere with the calculation of the compensation amount, done by the Tribunal.
9. Accordingly, this appeal is allowed. However, in the circumstances of the case, there shall be no order as to costs.