JUDGMENT S.C. Mohapatra, J.
1. These five appeals under Section 110-D of Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') have been filed by the insurer. Since all the appeals relate to the same accident and arise out of common judgment, all the appeals are heard together with consent of parties. In each appeal claimants have filed cross-objections under Order 41, Rule 22, Civil Procedure Code, which have been considered and heard along with the appeals together.
2. On 28.6.1983 passenger bus USC 5434 was proceeding on Meerut-Hapur route. At about 9.30 a.m. the bus went out of the road and dashed against a roadside neem tree near village Phaphunda. In respect of three appeals, claims were made by dependants on account of death of three passengers and the other two relate to claims by two injured passengers.
3. Owner contested applications denying negligence in driving of the vehicle. Insurer contested the claim on various grounds and stated that in case it is held liable the same is limited under Section 95 (2) (b) (ii) of the Act to the extent of Rs. 15,000/- in respect of each passenger.
4. The Tribunal on consideration of materials on record held that accident was on account of negligent driving of the vehicle and on the basis of evidence determined just compensation in each case. It having held that insurer has unlimited liability directed the insurer to pay the compensation awarded to different claimants which is grievance of insurer. Claimants have challenged inadequacy of the compensation determined.
5. First question to be considered in these appeals relates to the limit of liability of insurer. It is not disputed that in case it is held that liability of insurer would be limited, it would be Rs. 15,000 per passenger. Therefore, Section 95 requires no interpretation. It is also not disputed that insurer can cover unlimited risk in respect of a passenger in the bus by accepting higher premium from the owner. Insurer has claimed in these appeals that it has not been paid higher premium per passenger to cover unlimited liability while owner has claimed that it has paid higher premium per passenger. Since the recovery of compensation would be easy, claimants have supported the owner on this question.
6. Insurer has filed a copy of the policy, cover note and the proposal form in support of its case of limited liability. Printed tariff rate appears to have been shown to the Tribunal, copy of which has been filed in this court. Besides, it has examined the Development Officer as DW 2 to prove that on the premium received, it was limited liability of the insurer. Owner examined himself as DW 1 and asserted that he has paid the premium for unlimited liability of the insurer per passenger. DW 1 does not categorically deny the policy and its contents and the cover note and its contents. He has not produced the originals which in ordinary course are to be in his possession. He has, however, specifically denied his signature in the proposal form on the basis of which cover note and policy were issued.
7. Tribunal on consideration of the aforesaid materials rejected plea of the insurer on account of absence of specific plea in the written statement, defective proposal form and cover note, attachment of blank IMTs to the copy of the policy and collection of excess amount from the owner.
8. As regards absence of specific plea in the written statement of insurer, it will be seen that the same is limited to the extent of Rs. 15,000/- per passenger. Tribunal has relied upon decisions of Punjab and Haryana High Court and of Madhya Pradesh High Court that in absence of specific plea that its liability is limited, entire liability will be of the insurer. Apart from the fact that in this case insurer has taken the plea that it is limited, it is doubtful whether in a proceeding before the Tribunal rigid view on account of absence of specific plea can be adversely considered where materials on record speak otherwise. Hence, the decisions are distinguishable.
9. Defective proposal form, cover note and blank IMT in the copy of the policy filed has been adversely considered by Tribunal against the insurer. As regards proposal form, owner as DW 1 stated that he has not signed it. Besides, after issue of cover note and policy, proposal form has no importance. Development Officer, DW 2, stated that the proposal form was signed by the owner. In this state of evidence, even if proposal form is ignored from consideration, effect of cover note and policy is to be considered. Defect in the proposal form will be of no consequence.
10. Copy of the cover note has been filed by the insurer. Owner does not dispute that the copy filed is not the copy of the original supplied to him. Copy of the policy has been filed by the insurer. Owner does not claim that in the original policy supplied IMT 13 attached was blank. In such circumstances when DW 2 explained the mistake in the cover note and the policy, defects, if any, cannot be adversely viewed. If the originals would have been produced by the owner and there would have been variance between original and copy, question might have been different.
11. On perusal of the proposal form, cover note and the policy and on consideration of the evidence of DW 2 it is clear that more amount in total has been received from the owner than it was necessary. Tribunal held that from receipt of excess amount an inference can be drawn that the same is towards unlimited liability. On perusal of these documents it is seen that the premium is received in respect of different risks covered. The policy is comprehensive to the extent of Rs. 1,50,000/-. Thus, in case of damage to the vehicle, insurer agreed to cover risk to that extent. A comprehensive policy has no effect on third parties or passengers. Premium has been specifically collected for covering risk in respect of injury or death of passengers. Extract of tariff produced shows that for limited liability of Rs. 15,000/- in respect of each passenger, rate of premium is Rs. 12/-. The cover note indicates that for 21 +2 passengers premium of Rs. 242/- has been collected. For covering third party risk Rs. 240/- has been collected. Policy shows that licensed carrying capacity of the vehicle of passengers including the driver is 23. For driver and cleaner premium of Rs. 16/- has been collected and for third party which includes other passengers premium of Rs. 240/- has been collected. Total amount on various heads of covering risk received is Rs. 1,540/-. The same is also distributed in the policy and is mentioned in detail in the policy. Policy indicates that it covers risk on Endorsement Nos. 10, 13, 16, 21, 23 and 25 attached. Merely because IMT 13 is blank in the copy kept in insurance office, it cannot be said that original was also blank. It is true that owner stated that he instructed that passenger risk should be unlimited. Development Officer, DW 2, has denied of any such instruction and has fairly submitted that there was mistake of the amount mentioned in the cover note. He has explained the risk covered and stated that the amount towards passengers' risk should have been Rs. 252/- and not Rs. 242/-. For unlimited liability the premium per passenger is Rs. 50/-. Therefore, excess collection of premium would not lead to adverse inference of covering risk in respect of passengers to unlimited extent. If DW 2 would not have been examined as witness to explain the mistake, we might have considered the question of the effect of excess collection. A party can commit a mistake and unless explained, adverse view might have been taken depending on the facts and circumstances of a case. Where a party has explained the mistake, excess amount paid by the owner may be received back by him, but the same would not be a ground to saddle it with higher liability unless under specific provision of law it incurs such a liability. We, however, do not appreciate such mistake on the part of insurer which is a public sector undertaking having no living mind which is to discharge its function through individuals. Such individuals who are responsible for such mistake should be proceeded against and if found to be negligent should be adequately dealt with. On the facts of this case, we are satisfied that the insurance company cannot be held to have unlimited liability covering risk of each passenger. It is limited to the extent of Rs. 15,000/-per passenger. Balance compensation is to be paid by the owner. If so advised, owner can realise the amount paid by him from those individuals for whose mistake he has to suffer. Large number of decisions of various High Courts drawing adverse inference against insurer making the liability unlimited are distinguishable on facts.
12. Cross-objections filed by claimants for enhancement of compensation are not maintainable in view of the fact that the insurer cannot be made liable for compensation beyond Rs. 15,000/- per passenger. A co-respondent cannot make a claim against another co-respondent by way of filing cross-objection. Therefore, cross-objections not being maintainable, we have not considered merits of such claim.
13. In the result, appeals by insurer are allowed in part. Awards are modified by directing the insurer to pay Rs. 15,000/- in respect of each passenger for which claims are made with interest as directed by Tribunal. Owner is directed to pay the balance awarded amount to the claimants with interest. Cross-objections by claimants are dismissed. There shall be no order as to costs in these appeals.