G.C. Bharuka, J.
1. This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'), only by the owner of the vehicle against the award dated 12.3.1992 passed by the Accidents Claims Tribunal, Dhanbad, in Title (Motor Vehicle) Suit No. 58 of 1989.
2. The appellant is the owner of a truck bearing No. BRY 7343 which was insured with Oriental Insurance Co. Ltd. (respondent No. 2). The said vehicle met with an accident resulting in death of three persons including one Shiban Kumar Sarkar. The present case relates to the claim made by his widow, Runnu Sarkar (respondent No. 1). On appreciation of the evidence the court awarded a sum of Rs. 2,88,000/- out of which the respondent insurance company was directed to pay Rs. 1,50,000/- and the rest amount of Rs. 1,38,000/- has been held to be the liability of the appellant. The Tribunal has not assigned any reason for making this apportionment.
3. Mr. Lal, learned Counsel appearing for the appellant, has assailed the aforesaid apportionment by asserting that under the facts and circumstances of the case, it was incumbent upon the Tribunal to fasten the entire liability on the insurance company. To substantiate his stand, he has referred to various paras Of the written statement filed by the appellant and the respondent insurance company. His main ground is that despite the furnishing of the policy number and other particulars in the written statement filed by the appellant, the insurance company has neither filed the insurance policy nor had anywhere pleaded that the insurance policy extended only to the minimum statutory liability. Therefore, according to him, the Tribunal ought to have drawn adverse inference and held the insurance company liable for paying the entire amount of compensation. In support of the said submission, he has placed reliance on various judicial pronouncements.
4. Mr. P.K. Sinha appearing for the respondent insurance company had first tried to counter the submission of the appellant by taking a plea based on onus of proof. According to him, since a copy of the policy had been handed over to the appellant it was for him to produce the same. On the contrary, Mr. Lal appearing for the appellant has submitted that the appellant was only given a certificate of insurance and no policy as such was handed over to him. Moreover, according to him, the contesting respondent had not taken any such stand before the Tribunal.
5. The respondent insurance company has filed an application duly sworn by its Assistant Administrative Officer enclosing the documents of insurance with a prayer to admit those as additional evidence. One of the documents filed is a copy of the insurance policy described as true copy of the policy issued to the petitioner. It has been admitted that four copies of the insurance policies are prepared by the respondent company, one of which is issued to the owner of the vehicle and the remaining three are maintained in the office of the company. Despite several opportunities the respondent insurance company has failed to produce the original carbon copy of the policy on the plea that the same is not readily traceable in its office at Dhanbad.
6. On hearing the rival contentions, I am constrained to observe that in this case the insurance company is trying to defeat the claim of an insured policy holder by pleading procedural technicalities and withholding the primary document like the insurance policy and thereby dragging genuine claimants into prolonged, unwarranted and multiple litigation. It seems that the officers functioning in the insurance companies have taken the frivolous litigations as a part of their official duties and they seem to be deriving some pleasure in adopting such process, causing harassment and inconvenience to public having least care about wasteful expenditure of public money involved in such litigations and wastage of court hours which needs to be consumed in more fruitful pursuits. In recent times this tendency of the insurance companies has been repeatedly deprecated by several High Courts as also the Supreme Court as is evident from the observation of the Apex Court in the case of National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), wherein it has been held that:
Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State, such as the appellant, who is under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence.
(Italics are mine)
7. In the present case, as noticed above, the respondent insurance company was admittedly having the copies of the insurance policy with it, but for the reasons best known to its officers, they did not choose to file a copy of the insurance policy in spite of the full details being available on record in support of its defence that its liability does not exceed the minimum statutory liability. In somewhat similar situation this Court, after referring to various decisions, in the case of New India Assurance Co. Ltd. v. Chinta Devi 1992 ACJ 721 (Patna), has held that non-production of policy by the insurance company by itself is enough for drawing an adverse inference against the insurer for saddling it with the entire liability. But I propose to assign additional reasons for taking the same view against the respondent insurance company.
8. Mr. Sinha, appearing for the insurance company, has further submitted that in view of the terms embodied in the insurance policy, filed in this Court on affidavit, it will appear that the insurance company was required to pay only the statutory liability envisaged under the provisions of the Act. For that purpose he has referred to Section 11-1 (i) read with Clause (a) of 'Limits of Liability' as incorporated in the said policy.
9. In order to deal with the submission of Mr. Sinha I would first refer to the Schedule of Tariff prescribing the premiums for insurance of goods carrying vehicle based on their capacity and extent of such coverage, as in force at the material time as per the 'India Motor Tariff, a copy whereof has been produced before me by Mr. Sinha. For the commercial vehicles of the capacity in question, the schedule of premium was as follows:
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Licensed carrying Own damage Liability to the 'Act only'
capacity of the public risk liability
vehicle
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(2) Not exceeding Rs. 550/- + Rs. 240/- Rs. 200/-
3048 kg. 1.10% on
(3 tons) I.E.V.
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The said tariff defines the three categories of insurance coverage as follows:
Comprehensive cover: Loss of or damage to the insured vehicle by accidental external means, malicious acts, external explosion, fire, lightning, self-ignition, burglary, house-breaking, theft, strike, riot, flood, earthquake and transit by air, rail, road, inland waterway, lift elevator subject to limitation mentioned in the policy and insured's legal liability for death of or bodily injuries to third party or damage to property belonging to third party arising out of use of insured's vehicle in a public place. Limitations as per Motor Vehicles Act and/or prescribed as per policy and also workmen's compensation liability to paid driver, cleaner, attendant, conductor as per statutory workmen's compensation liability.
Liability to the public risk (Third Party Insurance): Indemnity against legal liability for claims by the public in respect of accidental personal; injury or damage to property caused by the insured vehicle and workmen's compensation liability to paid driver, cleaner or attendant whilst engaged on the vehicle as per limitations mentioned in the policy.
Act liability cover: Indemnity to the insured against legal liability subject to provisions as per Motor Vehicles Act for claims by the public in respect of accidental personal injury and/(or damage to any property of third party Rs. 1,50,000/-) only caused by the insured vehicle in a public place, and workmen's compensation liability to paid driver/attendant whilst engaged on the vehicle.
10. In present case it is evident from the certificate of insurance, the copy of the insurance policy and also money receipts filed by the respondent insurance company, that the petitioner had paid Rs. 240/- only as the premium for coverage of the liability to public risk whereas for coverage of liability to the extent of the minimum statutorily fixed liability which has been defined under tariff as 'Act only liability', is only Rs. 200. Therefore, there is no escape from holding that the respondent insurance company is liable to indemnify the owner of the vehicle for the entire liability arising in respect of the claims by the public under the Act because of any accidental personal injury.
11. Further, Section 11 of the policy in question relates to liability to third parties and its Clause (1) reads as under:
(i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle.
Clause (a) of 'limits of liability' reads thus:
Limits of liability:
(a) Limits of the amount of the company's liability under Section 11-I (1) in respect of any one accident:
Such amount as is necessary to meet the requirement of the Motor Vehicles Act, 1939.
From the above referred stipulations in the insurance policy it stands admitted that the respondent company had undertaken to indemnify the appellant of 'such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939.'
12. It cannot be disputed that under the provisions of the Motor Vehicles Act, the owner of a vehicle is required to pay compensation in case of death or bodily injury caused by or arising out of the use of the motor vehicle. The requirement arises keeping in view the mandatory provisions contained under Chapters VII-A and VIII of the Act. Therefore, keeping in view the 'limits of liability' clause contained in the insurance policy, as quoted above, it is incumbent upon the respondent insurer to indemnify the appellant for the entire amount which is required to be paid by him under the provisions of the Act pursuant to the award made by the Tribunal. On an interpretation of similar clause pertaining to liability to third parties and somewhat identical facts the Madhya Pradesh High Court has also taken a similar view in the case of New India Assurance Co. Ltd. v. Nanak Chand Ben 1989 ACJ 169 (MP), by holding that:
Reading of these clauses of the policy would indicate that the insurance company had undertaken to indemnify the insured to the extent of 'such amount' as is necessary to meet the requirements of the Motor Vehicles Act, 1939. Apparently this clause is widely worded and covers the entire liability of the owners. Limits of this extensive liability are provided in the proviso to the aforesaid section and do not include a case like the present one. Under the circumstances, this provision would indicate that the insurance company under this policy has undertaken to indemnify the insured of his total liability under the Motor Vehicles Act. The words 'requirements of the Motor Vehicles Act, 1939' cannot be read as requirements of Section 95 only. Then it cannot be overlooked that Section 95 does not deal with the requirement of insured or the owner of vehicle, it only limits the liability of the insurance company. For this reason, Section 95 of the Act cannot be read into this clause of the policy. This is how a comprehensive policy has been interpreted by a Division Bench of Karnataka High Court in Sundaram Finance Ltd. v. D.G. Nanjappa 1980 ACJ 377 (Karnataka).
13. For the above reasons, I hold that the Tribunal has committed an error of law in making the insurance company liable to pay a sum of Rs. 1,50,000/- only. In my opinion, respondent No. 2 is liable to pay the entire amount of compensation of Rs. 2,88,000/-. The unpaid amount of compensation should be paid by the insurance company to the claimant-respondent No. 1 with interest as directed by the Tribunal within two weeks from today. The Certificate Case No. 26 W.C./92-93 pending before the District Certificate Officer, Dhanbad, against the petitioner for realisation of compensation from the insured appellant as per impugned order of the Tribunal is hereby quashed.
14. The appeal is thus allowed but without costs.