D.P. Mohapatra, J.
1. In this letters patent appeal the judgment rendered by a learned single Judge of this Court in Misc. Appeal No. 385 of 1989 is assailed by the New India Assurance Company Limited which was the insurer of one of the ill-fated vehicles, a mini bus bearing registration No. OSG 5058.
2. The facts of the case, shorn of unnecessary details, may be stated thus :
On the application filed by the widow, children and parents of the deceased Rashika-raj Panda claiming compensation of Rupees 2,00,000/- (two lakhs) on account of the death of the deceased in the automobile accident which took place on 8-5-86 when the mini bus dashed against a motor cycle on which the deceased was travelling as a pillion rider, M. A. C. No. 227/87 (190/86) was registered before the Second Motor Accident Claims Tribunal, Berhampur. The claimants pleaded that the accident took place solely due to rash and negligent driving of the mini bus by its driver, in which Rashikaraj Panda was seriously injured and subsequently succumbed to the injuries in the hospital. He is stated to be a Junior Engineer and was getting a salary of Rs. 1867/- per month at the time of his death. The claim for compensation was made against respondent No. 1 Suresh Chandra Patra, the owner of the mini bus and the appellant, the insurer of the said vehicle.
3. The case was contested by both the parties. The owner of the mini bus admitted the accident but denied his liability for compensation, stating that the vehicle was 'duly insured with the appellant. The appellant contested the claim of compensation mainly on the ground that it was grossly high and excessive. It also specifically raised a contention that its liability cannot exceed Rupees 50,000/- as provided under Section 95(2)(b)(i) of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act').
4. The Tribunal on assessment of the evidence on record determined the compensation payable to the claimants at Rupees 1,70,000/- and saddled the entire liability on the Insurance Company. Being aggrieved by the said award of the Tribunal, while the Insurance Company filed Misc. Appeal No. 249 of 1988 the claimants filed Misc. Appeal No. 193 of 1988 seeking enhancement of compensation. Both the appeals were disposed of by a common judgment rendered on 12-5-89 in which the case was remitted to the Tribunal to reassess the amount of compensation and also determine the liability of the Insurance Company. After remand, the Tribunal enhanced the compensation to Rs. 1,91,000/- with a direction that out of the said amount the Insurance Company was liable to pay only Rs. 50,000/- and the balance amount of Rs. 1,41,000/- was to be paid by the owner of the mini bus. The said award was challenged in Misc. Appeal No. 385 of 1989 by the owner of the mini bus. The appeal was disposed of by judgment dated 7-5-1992 which is under challenge in the present appeal.
5. The sole point which was considered by the learned single Judge was whether the liability of the Insurance Company is unlimited or it has a statutory liability only. Relying on a Division Bench decision of this Court in Akhaya Kumar Sahoo v. Kumari Chhabirani Sethi, (1991) 33 Orissa JD 95 (Civil) : (AIR 1991 Orissa 218) the learned Judge held that the liability of the Insurance Company is unlimited since it had not produced a complete copy of the Insurance Policy. The relevant portion of the discussion in the judgment is extracted hereunder:
'In the case at hand, I find that the limit of liability of the Insurance Company was to the tune of Rs. 50,000/- and the same was subject to clause XVC and Endorsement Nos. 26, 23, 21, 16, 13(a) and 57. Some, of these endorsements, namely, Nos. 21 and I3(a) are not before this Court. For non-production of these two endorsements an adverse inference is liable to be drawn that if they had been reduced they would have gone against the Insurance Company. I, therefore held relying on the aforesaid Division Bench decision of this Court that the liability of the Company was unlimited particularly when the Insurance Company has not pleaded that it had limited liability and, therefore, the entire compensation amount of Rupees 1,91,000/- should be paid by the Insurance Company and no part of it is liable to be paid by the appellant.'
6. Though Shri M. Sinha, counsel for the appellant contended that the learned single Judge had disposed of the appeal without hearing him and had also rejected his application under Order 41, Rule21, C.P.C. seeking rehearing of the appeal, he laid stress on his submission that on the facts and circumstances of the case the learned single Judge erred in allowing the appeal filed by the owner of the mini bus solely on the basis of the adverse inference drawn against the Insurance Company for not supplying certain endorsements mentioned in the Insurance Policy.
7. Undisputedly, a copy of the insurance policy which was marked as Ext. 4/1 was filed by the appellant Insurance Company. It is also not in dispute that right from the beginning the appellant has been raising the contention that as an insurer of the mini bus its liability is limited only to Rs. 50,000/- as provided in Section 95(2) of the Act. Since the Tribunal initially saddled liability of the entire compensation of Rs. 1,70,000/- on it, the Insurance Company filed appeal in this Court assailing the award and as noted earlier, this Court remitted the case to the Tribunal for apportionment of the compensation between the owner and insurer of the mini bus. After remand, the Tribunal accepted the contention raised on behalf of the Insurance Company and confined its liability to Rs. 50,000/- as provided in the statute and directed the balance amount of compensation of Rs. 1,41,000/- to be paid by the owner of the mini bus which was assailed by the owner of the vehicle in Misc. Appeal No. 385 of 1989 before this Court and the judgment rendered therein is the subject matter of challenge in this appeal. Therefore it cannot be said that the Insurance Company had not taken the plea that its liability is limited as provided in the statute.
8. Coming to the question of drawing adverse inference for non-filing of complete insurance policy, it is clear from the discussion in the impugned judgment, the material portion of which has been quoted earlier, that the learned single Judge though found that the liability of the Insurance Company was limited to the tune of Rs. 50,000/-, he saddled the liability of the entire amount on the Insurance Company because the endorsements, namely, Nos. 21 and 13(a) in the policy were not placed before the Court.
9. The moot question that arises for determination is whether on the facts and circumstances of the case the learned single Judge was right in drawing adverse inference against the Insurance Company and on that basis saddling liability of the entire compensation amount of Rs. 1,91,000/ - on it. The Apex Court in National Insurance Co. Ltd., New Delhi v. Jugal Kishore, AIR 1988 SC 719 ruled that comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under Sub-section (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. In the said case the Court emphasised 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.
10. Relying on the aforesaid decision of the Supreme Court and other decisions of different High Courts, a Division Bench of this Court in Akhaya Kumar Sahoo (AIR 1991 Orissa 218) (supra) held that in all cases where the insurer takes a defence that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy to help the Court in doing justice in the case and on the facts of that case since Endorsement Nos. 23, 26, 21, 16, 13, 57(E) were not before the Court, adverse inference was drawn against the insurance company for non-production of complete insurance policy and on the basis of that finding the insurer was directed to pay the entire award amount. This decision of the Division Bench has been considered and explained in several decisions of this Court, some of which are noticed hereunder.
11. In Divisional Manager, Oriental Insurance Co. Ltd. v. Gunur Bibi, (1992) 34 Orissa JD 26 (Civil) I had the occasion to consider the decision of the Apex Court rendered in National Insurance Com. Ltd. v. Jugal Kishore (AIR 1988 SC 719) (supra) and the decision of this Court in Akhaya Kumar Sahoo (AIR 1991 Orissa 218) (supra) and other decisions on the point and I have taken the view that the decision in Akhaya Kumar Sahoo's case cannot be held as laying down a general principle of law that in case copy of the policy filed by the insurer is found to be incomplete in all respects, then the insurer has unlimited liability to idemnify the owner of the vehicle and the observations and findings in the said decision should be read and understood in the context of the facts of that case. I have opined therein that all that the Apex Court in National Insurance Company v. Jugal Kishore (AIR 1988 SC 719) (supra) observed was to the effect that whenever the insurance company wants to take the defence that its liability is limited to that prescribed in the Act, it should produce the insurance policy without relying on the technical plea of onus of proof and the Apex Court has not laid down the consequences of non-filing of complete insurance policy by the insurer, and therefore, the decision cannot be taken as an authority laying down any general principle of universal application and further the fate of the claim application depends on the facts and circumstances of the case, the defence taken by the owner and the insurer, whether the owner has asserted that he has taken an insurance policy with higher risk and in terms of the policy the insurer is liable to indemnify him for any amount beyond the limit prescribed under the statute. The Apex Court noted that very often the owner of the vehicle does not produce the insurance policy for reasons known to it.
12. A similar view was taken by Pasayat, J. in Udayanath Pani v. Basanti Dalai, (1991) 72 Cut LT 495 in which it was held that it cannot be laid down as a general principle that in all cases the insurer is required to file a copy of the policy to show that its liability is not unlimited'and that such a situation will only arise when there is a positive assertion that the liability of an insurer is unlimited or when claims to that effect are made. Then only the question of the insurer taking a defence that its liability is not unlimited arises. The view taken in that case was approved by a Division Bench of this Court in Ponailal Sinha v. Divisional Manager, Oriental Insurance Co. Ltd., J.H.O. No. 97 of 1991 disposed of on 27th March, 1992 and further reiterated in another Division Bench decision of this Court in National Insurance Co. Ltd. v. Prasanna Kumar Mitra. (1993) 2 Orissa LR 11.
13. From the conspectus of the views taken in the aforementioned decisions, the position is to be taken as well settled that the observation of the Supreme Court in National Insurance Co. Ltd. v. Jugal Kishore (AIR 1988 SC 719) (supra) that in cases where the insurance company concerned wishes to take 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, is not a principle of universal application and that the principle does not extend to a case where the insurance policy which has been filed is found to be incomplete in certain aspects and further that the liability for the entire compensation amount in excess of the statutory limit under Section 95(2)(b) of the Act cannot be saddled on the Insurance Company merely on the basis of adverse inference drawn against it for non-production of the complete insurance policy. The applicability of the principles depends on the facts and circumstances of each case.
The present case, in our view, stands on a better footing, inasmuch as the Insurance Company has filed the policy which was exhibited as Ext. 4/1. We do not find from the record that the insured, the owner of the mini bus has taken a specific stand in the case that it has taken an insurance policy on payment of additional premium for liability in excess of the statutory limit of Rs. 50,000/-. In the absence of such specific plea, it cannot be said that the Insurance Company was mandated to produce a copy of the insurance policy complete in all respects. Moreover, no material has also been produced before us to show that endorsement Nos. 21 and I3(a)which,as stated in the impugned judgment were not before the Court have any bearing on the extent of liability of the insurer. The learned single Judge drew adverse inference against the insurance company solely relying upon the decision in Akhaya Kumar Sahoo (AIR 1991 Orissa 218) (supra) which has been subsequently distinguished and explained by this Court in different cases as referred to above. Another noteworthy feature in the case is that the owner of the vehicle filed Misc. Appeal No. 385 of 1989 assailing the judgment of the Tribunal apportioning the compensation amount between him and the insurance company in the light of the provisions of Section 95(2) (b) of the Act. It was for him to establish with reference to the evidence on record that the decision of the Tribunal was erroneous. He could not have succeeded in the appeal merely by indicating that the copy of the insurance policy filed by the company did not contain endorsements Nos. 21 and 13(a) when he himself is guilty of laches in not submitting the original policy document which was in his custody. Accepting the decision of the learned single Judge would mean putting a premium on the negligence and laches of the owner of the mini bus in not submitting the original policy document in Court. The learned single Judge also went wrong in observing that the insurance company has not pleaded that it had limited liability. We have already noted that from the very start the Insurance Company has been contending that its liability is limited only to Rs. 50,000/- as provided in the statute.
14. On the analysis and discussions made in the foregoing paragraphs, it is our considered view that in the facts and circumstances of the case, the learned single Judge has erred in saddling the liability of the entire compensation amount on the appellant-insurance Company. It is our view that the Tribunal has rightly apportioned the compensation amount between the insured and the insurer.
15. In the result, the impugned judgment in Misc. Appeal No. 385 of 1989 is set aside and the decision of the Tribunal in H.A.C. No.227 of 1987 (190/85) is confirmed. The appeal is accordingly allowed. There will, however, be no order for cost of this appeal.
R.K. Patra, J.
16. I agree.