1. The appellant Insurance Company has preferred this appeal against the judgment and award dated 23.05.1997 passed by the Motor Accident Claims Tribunal(Main), Bhuj, (for short, “the Tribunal”) in M.A.C.P. Nos. 1 of 1990, whereby, the tribunal has awarded compensation in the sum of Rs.5,15,000/- to the claimants with interest at the rate of 15% per annum from the date of filing of the petition till realization.
2. The facts in brief are that on 20.10.1989, the original claimant was driving his motorcycle No.GRJ-7814 and at that time, a tempo No.GQY- 4696 was going ahead the motorcycle. The driver of the said tempo, suddenly, without giving any signal, turned the tempo to the right side and applied the brakes. As a result, the motorcycle dashed with the tempo and the original applicant sustained severe bodily injuries. Therefore, the claim petition came to be filed by claimant before the Motor Accident Claims Tribunal for compensation.
3. The Tribunal after hearing learned advocates for both the parties and after perusing the record decided the claim petition and passed the award as stated hereinabove, against which the present appeal is filed by the appellant- Insurance Company.
4. The appellant-Insurance Company has preferred the present appeal mainly contending the 'limited liability' issue. Lerarned advocate Ms.Fojdar for the appellant has contended that Rs.240/- premium is paid for limited liability to authorised non-fare paying passengers and Rs.16/- is paid for limited liability to paid driver and/ or cleaner. She has specifically contended that no premium for increase in third party risk was paid. She has further relied upon the judgment of Apex Court in case of National Insurance Co. Ltd. Vs. Nathilal and Ors. reported in AIR 1999 Supreme Court 623. The relevant Paragraph Nos.6 to 8 of the said judgment are quoted as under:-
examined on behalf of the Insurance Company, clearly shows that the Policy was in respect of seven passengers and one driver. The premium under Part-B of Schedule of Premium paid as against the seven passengers at Rs.12/- per passenger was shown as Rs.84/- and an additional sum of Rs. 8/- for the driver. In addition to this, a premium of Rs.180/- was paid towards liability to public risk. As against unlimited liability to column, no premium was paid as is evident from the Policy. The mere fact that the column against unlimited liability was not filled, will not automatically lead to the inference that the liability was unlimited in the absence of any special premium paid towards that claim.
7. This Court in National Insurance Co. Limited, New Delhi vs. Judgal Kishore & Ors. (AIR 1988 SC 719) while considering a similar case, held as follows:-
"We have accordingly perused the photostat copy of the Policy to ascertain whether risk for any amount higher than the amount of Rs. 20,000/- contemplated by C1.(b) aforesaid was covered. Our attention was invited by learned counsel for the respondents to the circumstance that at the right hand corner on the top of page 1 of the Policy the words "COMMERCIAL VEHICLE COMPRE-HENSIVE" were printed. On this basis and on the basis that the premium paid was higher then the premium of an "act only" policy it was urged by the learned counsel for the respondents that the liability of the appellant was unlimited and not confined to Rs. 20,000/- only. We find it difficult to accept this submission. Even though it is not permissible to use a vehicle unless it is covered at least under an "act only" policy it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case however, it is got comprehensively issued a higher premium than for an "act only" policy is payable depending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the Vehicle calculated according to the rules and regulations framed in this behalf. Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability fixed under sub-sec. (2) of S.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. Likewise, if risk of any other nature for instance, with regard to the driver or passengers etc. in excess of statutory liability, if any, is sought to be covered it has to be clearly specified in the Policy and separate premium paid therefor. (Emphasis supplied)
8. In the light of the above ratio laid down by this Court and in view of the fact that no extra premium was paid towards unlimited liability as is clear from the Policy produced before the Tribunal, the judgment and order of the Tribunal affirmed by the High Court cannot be sustained and are, accordingly, set aside. The liability of the Insurance Company is limited to Rs.15,000/-. The Award of the Tribunal will accordingly stand modified insofar as the liability of the appellant-
Insurance Company is concerned.”
5. In view of the observation made by the Apex Court in Paragraph Nos.6, the liability of the Insurance Company is limited, inspite no premium is paid for third party risk. Learned advocate Ms.Fojdar has further relied upon the Guide book for motor insurance underwriting, issued by the appellant-Insurance Company and clause-11 of the said guide book reads as under:-
“11. ADDITIONAL BENEFITS UNDER COMMERCIAL VEHICLES TARIFF (NOT APPLICABLE TO MOTOR TRADE ROAD RISKS) (1) Liability to the Public Risks The statutory limit for personal injury under Section II-1(i) and the property damage limit of Rs.50,000/- under Section II-1(ii) may be increased by payment of an additional premium on the following scale.
....”
6. In view of the above, only extra premium would increase the liability.
7. Learned advocate Mr.Mehul Shah for respondent No.1 has relied upon the judgment of the Division Bench of this Court in case of National Insurance Co. Ltd. Vs. Kokilaben wd/o Naginbhai Rameshchandra joshi and Ors. reported in 2003(2) GLR 1479. and more particularly on Paragraph No.11, which is quoted as under:-
“11. As far as the case on hand is concerned, we are required to consider the policy which is not Comprehensive Insurance Policy. Admittedly, the Insured has paid the premium of Rs.180/- which covers the liability of the public risk against Rs.150/covering the risk under the Act. At this stage, we may again refer to the evidence of Mr. Malek Ex.65. In his evidence, he has clearly stated that under the Act Policy, the premium is of Rs. 150/-. For the purpose of public risk/ third party risk, premium is of Rs. 180/-. He has also stated that for covering the third party risk, the party is required to pay additional premium of Rs. 50/-. Except the bare word of this witness, nothing is produced to show that the additional amount of Rs.50/- covers the unlimited risk. On the contrary, a pointed question was asked in the cross examination to this witness, namely that in the policy, it is not stated that the risk is limited to Rs. 1.5 lacs, to which he has stated that in the policy, it is stated"as per Motor Vehicles Act." Therefore, under the Act, the limited liability is fixed at Rs. 1.5 lacs and, therefore, he has stated so. He has admitted that in the policy, in the column "liability to third party", it is stated "unlimited liability."
Thus, from the contents of the insurance policy and the fact that the Insured had paid Rs.180/- as premium for the coverage of liability towards public risk, whereas for coverage of 'Act only liability' the premium payable under the tariff was Rs.150/-, we are clearly of the opinion that the appellant Insurance Company is liable to indemnify the owner of the offending vehicle for the entire liability arising in respect of the claims on account of any accident. Section II(1)(i) of the Act relates to liability to third party and as per the stipulation (limits of liability) in the insurance policy, it is clear that the insurance company had undertaken to indemnify the owner of the offending vehicle for such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939. In our opinion, in view of the limits of liabilities clause contained in the insurance policy, it is incumbent upon the insurer to indemnify the Insured for the entire amount which is required to be paid under the provisions of the Act. We are fortified by the judgment of Patna High Court in the case of Dilipkumar Saha Vs. Runnu Sarkar and anr., 1995 ACJ 353 and Madhya Pradesh High Court in the case of New India Insurance Co.Ltd. Vs.Nanak Chand Ben, 1989 ACJ 169. It is observed that:
"Reading of these clauses of policy would indicate that the insurance company had undertaken to indemnify the Insured to the extent 'such amount' as is necessary to meet the requirements of 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. Vs. D.G.Nanjappa, 1980 ACJ 377 (Karnataka)".
8. Mr.Shah has submitted that liability of the Insurance Company is unlimited and the identical issue is decided by learned Single Judge of this Court in case of Kantibhai Valjibhai Shah Vs. Kokilaben wd/o Haribhai Ambalal Patel and Ors. reported in 2009(3) GLH 692. He has further submitted that Apex Court in case of Somabhai Mathurbhai Patel Vs. New Shorrock Mills reported in 1983 GLH 273 held that it is not open to a learned Single Judge to reject the ratio of the decision of another learned Single Judge of the same High Court by merely saying that attention of that Single Judge was not invited to the decision of Supreme Court which may have an impact on the point under examination. Judicial comity demands that in such an event the matter should be referred to a larger Bench.
9. His request to refer the matter to the larger Bench, in view of the observation of the decision of the Supreme Court is binding on me if, the facts before this Court are same as before the other learned Single Judge. I am of the opinion that the judgment passed by other learned Single Judge of this High Court may not be followed because the specific contention raised herein that against the unlimited liability column, no premium was paid as evident from the policy, was not contended before the other learned Single Judge of this Court. Therefore, I am following the ratio laid down in case of Natilal's case (Supra).
10. The Apex Court in Natilal's case (Supra)., more particularly in Para No.6, has held as under:-
“6. A perusal of the Insurance Policy, which has been exhibited through the witness examined on behalf of the Insurance Company, clearly shows that the Policy was in respect of seven passengers and one driver. The premium under Part-B of Schedule of Premium paid as against the seven passengers at Rs.12/- per passenger was shown as Rs.84/- and an additional sum of Rs. 8/- for the driver. In addition to this, a premium of Rs.180/- was paid towards liability to public risk. As against unlimited liability to column, no premium was paid as is evident from the Policy. The mere fact that the column against unlimited liability was not filled, will not automatically lead to the inference that the liability was unlimited in the absence of any special premium paid towards that claim.”
11. It is undisputed fact that no premium is paid for unlimited liability and upon perusal of the Insurance Policy, Rs.240/- is paid for the limited liability to public risk. Therefore, the liability of the Insurance Company is restricted upto Rs.1,50,000/- and for the balance amount, the Insurance Company could not be saddled with any liability. The impugned judgment and award passed by the Tribunal is modified accordingly. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimant, the same shall not be recovered from the original claimant and the Insurance Company shall be at liberty to recover the balance amount from the owner of the vehicle. But, if the amount has not been withdrawn by the original claimant, the balance amount shall be refunded to the Insurance Company. The appeal stands disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.] ..mitesh..