Panwar, J.
1. This appeal is directed against the judgment and awarded dated 2.2.1994 passed by Motor Accident Claims Tribunal, Raisinghnagar (hereinafter referred to as 'the Tribunal') whereby the Tribunal awarded compensation of Rs. 5,91,000/- along with interest at the rate of 12% in favour of respondent-claimants No. 1 and 2, who are parents of the deceased (hereinafter referred to as the claimants') and against the respondents No. 8, 9 and the appellant who are driver, owner and insurer of the vehicle involved in the accident.
2. Being aggrieved by the award impugned dated 2.2.1994, the appellant New India Assurance Company Ltd., filed this appeal only on the ground that the liability of the appellant insurer is limited to the extent of Rs. 15,000/- as provided under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the old Act') as applicable on the date of the accident i.e. on 4.2.1989.
3. Heard learned counsel for the parties. Perused the record.
4. In the instant case the accident took place on 4.2.1989 while deceased Kuldeep Singh was travelling in taxi jeep No. RRT 3718 from Jaitsar to Ganganagar. It was the case of the claimants that the jeep was driven at a great speed, rashly and negligently by its driver respondent No. 8 Makhan Lal. Despite request made by the occupants of the jeep, the driver of the jeep continued to drive the jeep at a great speed and rashly and negligently. At about 12:00 in the night while the jeep was plying at 7, L.C., suddenly the right rear wheel got punctured and turned turtled. Due to this accident, Kuldeep Singh who was travelling in the said jeep at the relevant time as a passenger, sustained various injuries. He succumbed to the injuries instantaneously. The respondent-claimants filed claim petition before the Tribunal against respondents No. 8 and 9, who are driver and owner of the said jeep as also against the appellant insurer. Notices of the claim petition were served on respondents No. 7 and 8 by the Tribunal. In spite of service of the notice, the driver and owner of the vehicle did not appear before the Tribunal and accordingly, they were proceeded exparte. The appellant filed its written statement. In para No. 23 of the written statement, a specific plea was taken regarding limits of liability of the Insurance Company. It was pleaded that the liability of the appellant would be to the extent provided under the Policy of Insurance. Appellant reserved the defences as provided under Sections 147 and 149 of the Motor Vehicles Act. Obviously, Sections 147 and 149 of Motor Vehicles Act of 1988 were not applicable as on the relevant date of accident i.e. on 4.2.1989 the old act was applicable.
5. The Tribunal by the impugned judgment and award dated 2.2.1994 came to the conclusion that the said accident was as a result of rash and negligent driving of the aforesaid jeep by its driver, respondent No. 8 Makhan Lal. The said jeep at the relevant time was owned by and insured in the name of respondent No. 9 Om Prakash. A photo copy of the cover note of the said jeep was placed on record by the claimant-respondents. However, the appellant filed policy of insurance Ex.A71. The Tribunal passed the award against respondents No. 8 and 9 and the appellant insurer.
6. The learned counsel for the appellant contended that the vehicle involved in the accident was a vehicle in which passengers were carried for hire and reward and the liability of the insurance company is as provided under Section 95(2)(b)(ii), which clearly provides that in case of passenger, the liability of each passenger is limited to the extent of Rs. 15,000/-. He further contended that the vehicle in question was although insured comprehensively but so far as liability to passenger is concerned, the appellant insurer has charged Rs. 84/- at the rate of Rs. 12/- per passenger for 7 passengers and Rs. 8/- for one driver. Thus, according to him, the appellant has undertaken the risk of passenger as provided under the aforesaid provision of the old Act. He has shown the tariff applicable to all passengers carrying in the vehicle except Motorised Rickshaws wherein limit of the liability is provided as under: -
LEGAL LIABILITY FOR ACCIDENT TO PASSENGERS
1. Applicable to all Passenger Carrying Vehicles except motorised Rickshawas Per Passenger on Total Licensed passenger carrying capacity
LEGAL LIABILITY FOR ACCIDENT TOPASSENGERS1. Applicable to all Passenger Carrying Vehicles exceptmotorised Rickshawas Per Passenger on Total Licensed passenger carryingcapacity
Limits of Liability(A)
Any one Passenger
15,000
20,000
30,000
Unlimited
(B)
Any one Accident
Overall limit depending upon the total licensed PassengerCarrying Capacity
Rate per Passenger Rs. 12/- Rs. 23/- Rs. 30/- Rs. 50/-
7. As per the tariff, the rate per passenger is shown to-be Rs. 12/- and the liability as Rs. 15,000/-. The learned counsel for the appellant relied on a judgment of this Court in Oriental Insurance Company and others v. Verda Ram and Ors. (1) This Court while considering the identical matter, discussed at length with regard to the point in issue in that appeal and observed as under:-
'It is true that notwithstanding the provisions of Section 95(b) providing for statutory liability it is open to the insured to take policy covering a higher risk on payment of additional premium or otherwise, it is therefore, necessary to look into the policy produced in the case and find out whether there is specific agreement covering higher risk and liability then the statutory liability. A policy was issued by the New India Assurance Company on 12.10.87 for jeep taxi of sitting capacity of 7 passengers i.e. 6 passengers and driver, in the left top corner, the words are shown 'Comp.' i.e. comprehensive. Under Schedule of premium the premium of Rs. 800/- paid for 'own damages basis' i.e. for covering the risk of the vehicle. Premium of Rs. 120/- is shown to have been paid for liability to public risk and Rs. 72/- for legal liability to passenger, as per Endorsement Indian Motor Tariff, 13. Limit per passenger and maximum rupees as per Motor Vehicles Act, 1939 are left blank. Motor Tariff provides that it is compulsory to cover legal liability to fare payment passengers. The liability for accident to per passenger on total licensed passenger carrying capacity is fixed and limited to Rs. 15,000/- to any one passenger on the accident on premium of Rs. 12/- per passenger Rs. 20,000/- for premium of Rs. 23/- for 30,000/- premium of Rs. 30/- and for covering unlimited risk, premium rate per passenger is Rs. 50/-. The vehicle in question is jeep licensed to carry six passengers and the premium paid covering the legal liability is Rs. 72/- only that is 12 rupees per passenger. Under the policy only statutory risk is covered by payment of premium of Rs. 12/- for six passengers of Rs. 72/- only.'
8. A similar question came up for consideration before Hon'ble Supreme Court in National Insurance Company v. Jugal Kishore (2) and in New India Assurance Company Ltd. v. Shanti Bai and Ors. (3), the vehicles involved in the accidents were comprehensively insured but no additional premium was paid for covering the risk of' third party to the extent of unlimited or higher than a liability fixed by Section 95(2)(b)(ii) of the old Act. The Hon'ble Supreme Court in New India Assurance Co, v. Shanti Bai's case (supra) also considered the rate of annual premiurh per passenger with reference to tariff in respect of 'legal liability for Accidents to passengers' and held that if the limit of liability for any one passenger is fifteen thousand rupees, the rate of annual premium per passenger is Rs. 12/-. If the limit is twenty thousand rupees, the rate of premium per passenger is Rs. 23/- per annum and so on. In respect of unlimited liability the premium payable per passenger is Rs. 50/- per passenger annually.
9. In the case of Oriental Insurance Company v. Verda (supra) and in New India Assurance Company Ltd. v. Shanti Bai and Ors. (supra), the vehicles involved in accident were the vehicle in which the passengers carried were on hire and reward. In the instant case also, the vehicle involved in the accident is the vehicle in which passengers were carried for hire. The jeep was registered as taxi jeep and the premium charged by the appellant was Rs. 84/- for 7 passengers at the rate of Rs. 12/- per passenger.
10. The case of the appellant is squarely covered by the two aforesaid decisions of the Hon'ble Supreme Court and decisions of this Court in Oriental Insurance Co. v. Verda Ram (supra) In the aforesaid tow judgments of the Supreme Court, their Lordships of the Hon'ble Supreme Court have held that the liability of the Insurance Company per passenger is only limited to the extent of Rs. 15,000/- on the relevant date of accident as in that case annual premium was charged @ Rs. 12/- per passenger. In the instant case copy of cover note is on record which shows that the appellant has charged Rs. 84/- for 7 passengers. Thus, with this rate of annual premium, the liability of appellant cannot be more than Rs. 15,000/- per passenger.
11. Learned counsel for respondent No. 9, the owner of the vehicle contended that the Insurance Company has failed to establish it's limits of liability and, therefore, the Insurance Company should be held liable for the payment of entire amount of compensation awarded by the Tribunal. He further contended that the Insurance Company has not pleaded and proved the limits of its liability. He has placed reliance on the judgment of this Court in the General Assurance Society Ltd. Jodhpur v. Smt. Chhagan Kanwar and Ors. (4) Thus Court observed as under:-
'It is true that the strict rule of pleadings cannot be invoked in the claim petition but it is desirable that the claimants must know the case of the respondents, which they have to meet. Neither there was any pleading nor was there any issue framed by the learned Judge of the Tribunal regarding limited liability of the insurance company. If an objection regarding the limited liability would have been taken by the appellant insurance company before the trial Court then the claimants would have an opportunity to lead evidence to show that extra-premium was paid or any extra contract to cover unlimited liability was arrived at between the parties. In the absence of such pleadings and the evidence on record, the appellant insurance company cannot be allowed to agitate this ground in the appeal. The learned Single Judge was, therefore, right in holding the appellant insurance company liable to indemnify the full claim.
12. In the case of the General Assurance Society Ltd. Jodhpur v. Smt. Chhagan Kanwar and Ors. (surpa) there was no pleading by the Insurance Company regarding the limited liability whereas in the instant case, the Insurance Company specifically pleaded that the limits of the liability would be to the extent as provided in the policy and the Insurance Company also placed on record Insurance Policy Ex.A/1 and the parties before the Tribunal did not dispute it. On the contrary, form the perusal of document, Ex. A/1, it is obvious that the Insurance Policy Ex.A/1 was admitted by the party contesting before the Tribunal. Thus, neither any objection was raised by the party contesting before the Tribunal at the time of exhibiting the document EX.A/1 nor any evidence contrary to that is produced on the record. Respondent No. 9 failed to show even before this Court that he has paid extra premium for covering the risk to the extent of unlimited liability by paying extra annual premium. From the rate of tariff noticed above, it is clear that for covering unlimited liability the rate of premium is Rs. 50/- per passenger.
13. Learned counsel for the owner contended that the amount shown in the cover note and the policy of the insurance Ex.A/1 do not tally. I have perused the photo copy of the cover and the insurance policy Ex.A/1. So far as liability to cover the risk of passengers carried in the vehicle is concerned, there is no variation between cover note and Insurance Policy Ex A/1. In the cover note, it is specifically mentioned that the Insurance Company has charged Rs. 212/- covering risk of third party plus one driver and 7 passengers (120+84+8=212/-) In the policy also the same amount is mentioned. So far as the risk of passengers is concerned Rs. 84/- has been charged under the head Liability to Passengers for 7 passengers. I do not find any variance in these documents and, therefore, the contention raised by the learned counsel for the owner is unfounded.
14. The learned counsel for the respondent-claimants contended that even if the liability of the appellant Insurance Company is limited to the extent provided under the provisions of Section 95(2)(b)(ii) of the old Act, the claimants are entitled for the entire amount of compensation from the appellant Insurance Company. It was contended that in Policy Ex. A/1 there is a clear condition to this effect, which reads as under: -
'AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY
Nothing in this Policy or any Endorsement hereon shall affect the right of any person indemnified by this Policy or any other person recover an amount under or by virtue of the provisions of the Motor Vehicles Act, 1939 Section 96.
But the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the said provisions.'
15. Dealing with a similar situation in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanmal Aswani (5), the Hon'ble Supreme Court had held as under:-
'The Act contemplates the possibility of the policy of insurance undertaking liability to third parties providing such a contract between, the insurer and the insured, that is, the person who effected the policy, as would made the company entitled to recover the whole or part of the amount it has paid to the third party from the insured. The insurer thus acts as security for the third party with respect to its reallsing damages for the injuries suffered but vis-a-vis the insured, the company does not undertake that liability or undertake it to a limited extent. It is in view of such a possibility that various conditions are laid down in the policy. Such conditions, however, are effective only between the insured and the company, and have to be ignored when considering the liability of the company to the third parties. This is mentioned prominently in the policy itself and is mentioned under the heading avoidance of certain terms and rights of recovery' as well as in the form of 'An Important Notice' in the Schedule to the policy. The avoidance clause says that nothing in the policy or any endorsement thereon shall affect the right of any person indemnified by the policy or any other person to recover an amount under or by virtue of the provisions of the Act. It also provides that the insured will repay to the company all sum paid by it which the company would not have been liable to pay but for the said provisions of the Act. The Important Notice mentions that any payment made by the company by reason of wider terms appearing in the certificate in order to comply with the Act is recoverable from the insured, and refers to the avoidance clause.'
16. In Oriental Insurance Co. Ltd. v. Cheruvakkara Nafeessu and Ors. (6), a similar question came up for consideration before the Hon'ble Supreme Court. In that case, the limit of liability of the Insurance Company in respect of any one accident or series of claims arising out of one event was Rs. 50,000/- only but the clause of the policy provide 'Nothing in this policy or the endorsement hereon shall affect the right of any person indemnified by this policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act, 1939, Section 96,'
17. In that case, the Hon'ble Supreme Court held that the liability under the policy was limited to the extent of Rs. 50,000/-. However, it was further held that the Claims Tribunal and the High Court were not unjustified in directing the appellant company to pay whole of the awarded amount to the claimants on the basis of contractual obligation contained in clauses related to the liability of third party and avoidance clause. It was also held that the appellant company is liable to pay the entire amount awarded and upon making such payment insurance company can recover the excess amount from the insured.
18. The case in hand is almost identical facts and there is a specific clause in the policy whereby the Insurance Company has undertaken to pay the amount to the claimant. However, the owner of the vehicle is liable to repay the appellant insurance company all sum paid by the Company which the company would not have been liable to pay but for the said provision. Thus, the Insurance Company is liable to pay the entire amount of compensation along with interest to the claimants and thereafter the Insurance Company will be entitled to recover the amount paid by it beyond its liability i.e. beyond Rs. 15,000/- and interest thereon from the owner of the vehicle respondent No.9.
19. In view of the aforesaid discussion, I hold that the liability of the Insurance Company is limited to Rs. 15,000/- and interest thereon. The appellant Insurance company is directed to pay the entire amount of compensation awarded along with interest to respondent-claimants No. 1 and 2 within a period of 6 months from today. However, the appellant insurer would be entitled to recover the amount from the owner of the vehicle, respondent No. 9 any amount paid beyond its liability as has been determined.
20. No other point has been raised.
21. In view of the above discussion, this appeal succeeds and it is herebyallowed to the extent that the liability of the appellant is limited to Rs. 15,000/- andinterest thereon. No order as to costs.