M/S. Azad Nakodar Bus Servie (P) Ltd. and Another Vs. Harbans Singh and Others - Court Judgment

1. This judgment will dispose of F.A.O. Nos. 1181, 1198 and 1216 to 1223 of 1987.

The Facts

2. The appellant No. 1 is the owner of bus bearing registration No. 2231. On March 11, 1986, it was on its way from Nakodar to Jalandhar. At about 8 A.M., it was passing over the bridge near village Mudhan when it rolled down 18 feet deep into the Bein. As a result thereof, seven persons lost their lives while five sustained injuries on their persons. 12 claim applications were filed in which it was inter alia pleaded that the accident took place as a result of rash and negligent driving of the bus driver. The respondent/appellant admitted the accident but pleaded that the Punjab Public Works Department was responsible for the accident for not keeping the road in a roadwrothy condition. There were depressions on both sides of the bridge, proper railings and protection on the bridge were not provided. The bus was coming at a slow speed. It got a jurk, with the result that the front spring (Patia) of the right side was broken and the driver could not control the vehicle and it fell into the Bein.

3. The Insurance Company admitted the accident but denied its liability to pay thecompensation to the claimants.

4. The learned Tribunal on evidence found that accident was the result of rash and negligent driving of the bus by the driver, namely, Avtar Singh who was also killed in the accident. He allowed compensation to the claimants. However, he held that the liability of the Insurance Company will extend to Rs. 15000/- for each passenger and the balance amount of compensation has to be paid by the owner of the vehicle.

5. The owner of the vehicle has challenged the award. In the appeal, the controversy is confined only to one point as to who is liable to pay the compensation amount. The appellant maintains that the Tribunal ought to have fastened the entire liability for paying the compensation amount on the Insurance Company. Negligence on the part of the driver of the vehicle resulting in the death of the passengers and the bodily injuries to the other passengers is not disputed. The claimants' version as to the manner in which the accident took place has not been questioned.

6. The learned counsel for the appellants made submission that duplicate insurance policy produced by the Insurance company is tampered with and it has not been proved according to law.

7. The original policy of insurance is always with the insured owner of the vehicle and for undisclosed reasons, it was not produced on record. Under Sect ion 95(2)(b)(ii) of the Motor Vehicle Act, 1939 (for short 'Act'), the liability of the Insurance Company at the relevant time per passenger was limited to Rs. 15000/- only. The insured on payment of higher premium can enlarge the liability of the insurer and a specific provision has to be made in the insurance policy that the insurer is under obligation to pay higher amount of compensation in the event of an accident and not the one specified in the statute. Ordinarily, the burden would be on the owner of the vehicle to plead and prove that there was a covenant in the policy of insurance enlarging the liability of the insurer. The insured is under obligation to make specific pleadings and prove the same by producing the originalpolicy of insurance. This course was not followed by the owner of the vehicle. The submission now made cannot be sustained. The contention that the insurance policy Ex. R1 produced by the insurer is tampered with is without any basis.

8. I have gone through duplicate copy of the insurance policy produced by the insured and found that the submission is hollow.

9. In the instant case, it was for the insured to produce the original policy of insurance. Having failed to do so, it is not open to it to urge that the duplicate insurance policy produced by the insurance company was not properly proved. The duplicate insurance policy was tendered in evidence on August 26, 1987 before the Tribunal. No objection was raised at that time. I am afraid if the objection regarding mode of proof can be raised at the belated stage. Moreover, this objection is not available to the insured since the original policy of insurance was in its possession. The Insurance Company specifically pleaded in the written statement that its liability was limited to the extent of Rs. 15000/- for each passenger. The plea taken by the Insurance Company was proved by producing duplicate insurance policy and a copy of the tariff rules Ex. R2. The tariff rules indicate the rate of premium charged for the liability undertaken. The plea taken by the learned counsel has to be rejected.

10. After the conclusion of the arguments, the ; learned counsel for the appellant moved Civil Misc. No. 5019-CU of 1989 in FAO No. 1181 of 1987 for permission to place on record photo copy of the insurance policy. The application is not supported by an affidavit. It is not disclosed why the original was not produced. No authenticity can be attached to the photo copy of the insurance policy. The appeal was filed in December 1987 in this Court. No reason is forthcoming why the original policy of insurance was not produced along with the appeal. The owner of the vehicle is disputing its liability to pay the compensation amount on the ground that entire liability is that of the Insurance Company and the Tribunal on evidence has recorded a firm finding that the liability of theInsurance Company is to the extent of which it is mentioned in the Act and the only answer was the production of the original policy of insurance at the time of the filing of the appeal. I am not inclined to accept the application for additional evidence at this stage. The application is rejected.

11. For the reasons stated above, the appeals are dismissed.

12. Appeals dismissed.