Hansaria, C.J.
1. A sum of Rupees 70,000/- was claimed as compensation under Section 110-A of the Motor Vehicles Act, 1939 (shortly, 'the Act'). Following the accident in which the claimant was injured by a bus while standing near her house, her left arm had to be amputated. When the accident occurred, the claimant was aged about 15 years and was prosecuting her studies in class X. She had thus a bright prospect in life but due to the accident her expectation even of marriage got belied and she became invalid for life.
2. The learned 2nd. Motor Accident Claims Tribunal, Cuttack, on being satisfied about the justifiability of the amount as claimed awarded the same. Out of the awarded amount, a sum of Rs. 50,000/- was made liable to be paid by the insurer of the vehicle and as to the remaining amount, the owner was made liable. Feeling aggrieved, the owner has preferred this appeal.
3. When the appeal was heard by a learned single Judge of this Court, the question which was substantially urged was relating to the liability of the insurer. Reliance was placed by Mr. Basu appearing for the appellant National Insurance Co. v. Krushna Chandra Das, (1989) 2 OLR 120, in which a learned single Judge of this Court held that in a case of the present nature where the accident was caused by a bus, the liability of the insurer qua a pedestrian was not confined to a sum of Rs. 50,000/- of which reference has been made in Section 95(2)(b)(i) of the Act. The learned Judge who heard this appeal could not persuade himself to agree with the aforesaid view and, because of this, desired that the matter may be examined by a larger Bench. It is for this reason that the appeal is before us.
4. As we are concerned with the interpretation of Section 95(2)(b)(i) of the Act, we may quote the same :--
'95 (2). Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely :--
(a).....
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment,--
(i) in respect of persons other than passengers carried for hire or reward, limit of fifty thousand rupees in all;'
The learned single Judge who decided the case in Krushna Chandra Das (supra) held that the limit of liability dealt by Sub-clause (i) refers to other categories of persons moving in the vehicle except those who are passengers carried for hire or reward. It was observed that Section 95(2)(b) deals with vehicles in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, out of whom, Sub-clause (i) takes care of persons who are in the vehicle but who are not passengers carried for hire or reward. It was stated that a pedestrian is not such a person, and that the language of Sub-section (2) being one for limiting the broad liability of the insurer in Sub-section (1), the same has to be rigidly construed; and the benevolent provision in Section 95 must be construed in a manner so that a large number of claimants get the benefit. The question for consideration is whether the aforesaid view can be upheld.
5. Mr. Basu appearing for the appellant and Mr. Mohanty appearing for the claimant submit that the view expressed in Krushna Chandra Das merits our acceptance. In this connection we have been referred, inter alia, to a Full Bench decision of the Rajasthan High Court in Abdul Shahid v. Naraini, 1988 ACJ 887. Reference to this decision shows that the insurer was fastened with higher liability than fixed by Section 95(2)(b)(i) not because this clause does not apply to pedestrians but because the insurance in the case being of comprehensive nature, it was held that the insurer was liable to indemnify the entire awarded amount which was Rupees 1,20,000/-. As to the correctness of this view, we shall advert a little later; but it may be pointed out here that the stand taken by the learned single Judge in Krushna Chandra Das runs counter at least to two Supreme Court decisions, namely, British Indian General Insurance Co. v. Maya Banerjee, 1986 ACJ 946 : (AIR 1986 SC 2110) and National Insurance Co. v. Jugal Kishore, 1988 ACJ 270: (AIR 1988 SC 719).
6. In Maya Banerjee, what had happened was that the deceased was knocked down by a bus while riding a cycle. The High Court fixed the liability of the insurer at Rs. 30,000/-. It was canvassed before the Supreme Court that the insurer's liability did not extend beyond a sum of Rs. 20,000/ - and had been provided in Section 95(2)(b)(i) of the Act at the relevant time. The Apex Court observed that this provision had confined the liability of the insurer to a sum of Rs. 20,000/- in respect of persons other than passengers carried for hire or reward and the deceased being admittedly a third party having been knocked down while riding a cycle, it was held that the liability of the insurer could not be in excess of the statutory limit.
7. In Jugal Kishore (supra) also which had dealt with the insurer's liability in respect of injuries sustained by a person driving a scooter having been knocked down by a bus, it was stated that on the plain language of Section 95(2)(b)(i) the liability could not be in excess of Rs. 20,000/-.
8. This being the state of law, we are not in a position to accept the view expressed in Krushna Chandra Das, and it has to be held that the statutory liability of the insurer in a case of the present nature would be governed by the provision contained in Section 95(2)(b)(i) of the Act.
9. The next question is whether in view of the comprehensive policy taken out in the present case, higher liability can be fastened on the insurer. The aforesaid Full Bench decision of the Rajasthan High Court is relevant on this aspect of the case; and as already noted, according to this decision, in a case where the policy is comprehensive the insurer is liable to pay the entire amount awarded in a case though the same may be beyond the limit visualized by Section 95(2)(b)(i) of the Act. Same view was taken in Oriental Fire & Genl. Ins. Co. v. V. Ganapathi Ramalingam, 1982 ACJ (Supp) 106, by the Madras High Court. As to these cases, it is enough to point out that the same runs counter to the view expressed in Jugal Kishore, (AIR 1988 SC 719) (supra) inasmuch as it was held in that case that comprehensive insurance of the vehicle and payment of higher premium on this score did not mean that the limit of the liability in regard to third party became unlimited or higher than the statutory liability fixed under Section 95(2) of the Act. The Court further observed that 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 on this behalf. On examining the terms of the policy of that case, it was, however, found that the insurer had not undertaken to foot the bill of higher liability though the policy was comprehensive in nature. The view expressed in the aforesaid two cases cannot, therefore, be accepted to have laid down the correct law.
10. Mr. Mohanty, however, urges that the policy in the present case would show that the insurer had not limited its liability to the statutory limit. This contention is advanced on the basis that though the insurer had filed two copies of the policy in question, which had been marked as Exts. A and B, the same are not complete copies of the policy and as such it is not known if the insurer had not agreed to indemnify the insured in excess of the statutory liability.
11. Before examining the soundness of the aforesaid submission, we may point cut that in view of what has been stated in Jugal Kishore (AIR 1988 SC 719) (supra), 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. We may then refer to Lakhpat Rai v. United India Fire & Genl. Ins. Co., 1988 ACJ 466 : (Punj & Har) wherein, because of an incomplete copy of the policy being placed on record, it was held that the liability of the insurer's company was not limited to what has been provided in the statute. A learned single Judge of this Court in Rangachari Laxmi v. Prakash Chandra, 1 (1987) ACC 197, drew an adverse inference against the insurer for not filing the complete policy and held that in case the complete policy had not been filed, the same would have shown that the insurer was liable beyond the statutory limit, and being of this view, the insurer was asked to pay the entire amount awarded which was Rupees 15,000/- as against the statutory limit of Rs. 5,000/-.
12. Let it be seen whether Exts. A and B which have been placed on record constitute the whole policy or are parts of the policy. Mr. Ray appearing for the insurer contends that Exts. A and B contain the material part of the information relating to the policy in question and as such have to be regarded as the complete policy. We are, however, unable to accept the submission inasmuch as a perusal of these exhibits shows that the policy in question was 'Subject to Clause MVC and Endorsement Nos. 23, 26, 21, 16, 13, 57(H)'. These endorsements are not before the Court. We are, therefore, neither in a position to hold that these exhibits are true copies of the whole policy, nor are we in a position to know as to the contents of the aforesaid endorsements; and therefore, by relying on the aforesaid two decisions, order the insurer to pay the entire awarded amount of Rs. 70,000/-.
13. It is finally urged by that the award of Rs. 70,000/- in the present case must be regarded as excessive and we should reduce the award to a sum of Rs. 50,000/-. To persuade us to do so, Mr. Basu refers to various decisions to wit, Assam State Road Trans. Corporation v. Halaluddin Ahmed, 1988 ACJ 711 (Gau), Braja Kishore Mohanty v. M.C. Shyamsundar, AIR 1989 Ori 237, Jagabandhu Mohanty v. Hadibandhu Swain, 1986 ACJ 770 (Ori) Govind Nayak v. Shyam Sundar Soni, 1988 ACJ 39, Aximulla Khan v. Shanti Devi, 1986 ACJ 761 : (AIR 1986 Raj 5), Rajendra Kumar v. M.P. State Road Trans. Corporation 1986 ACJ 1054 (Madh Pra), Tejpal Singh v. Rajasthan State Road Trans. Corporation, 1986 ACJ 720 (Raj), and (8) United India Fire & Genl. Ins. Co. v. C.P. Varghese, 1988 ACJ 152, (Ker) wherein different High Courts of the country including this Court had awarded sums varying from Rs. 23,000/-to Rs. 56,500/- for amputation of either right leg, left leg or right hand. As to these decisions, it may be pointed out that in none of these cases the High Court had reduced the quantum of compensation as fixed by the Claims Tribunal the High Court had either upheld the award of the Tribunal or enhanced the same. This apart, it may be stated that while computing compensation for injuries of the present nature, it is apparent that the just amount shall have to be decided keeping in view the facts of each case and no hard and fast rule can be laid down that where a leg or hand is amputated, the award is not to exceed Rs. 50,000/-. In the present case the learned Tribunal having gone into the evidence on record on the basis of which the quantum was fixed at Rs. 70,000/-, we are not inclined to reduce the same.
14. In the result, the appeal is allowed by directing the insurer to pay the entire amount as awarded by the learned Tribunal. This would be done within two months from today.
R.C. Patnaik, J.
15. I agree.