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CASE NO.:

Appeal (civil) 5463 of 1998

PETITIONER:

New India Assurance Co. Ltd.

RESPONDENT:

Kiran Singh & Ors.

DATE OF JUDGMENT: 28/04/2004

BENCH:

S.N. VARIAVA & H.K. SEMA.

JUDGMENT:

J U D G M E N T

WITH

CIVIL APPEAL NO. 3783 OF 1999

Smt. Kiran Singh & Anr.

Versus

New India Assurance Co.Ltd. & Anr.

H.K.SEMA,J.

These two appeals arise from the same judgment and order

and they are being disposed of by this common judgment. Civil

Appeal No.5463 of 1998 had been filed by the New India Assurance

Co. Ltd. against the Award and Civil Appeal No. 3783 of 1999 had

been filed by the claimants for the enhancement.

Briefly stated the facts are as follows:-

A young Assistant Engineer aged about 27 years had died in a

motor accident on 10.1.1988 while travelling in a bus bearing

registration no. URN 9428. The said bus was insured with the

appellant-company. At the time of death the deceased was drawing

a salary of Rs. 2384.50 p. The claim petition was filed by the wife of

the deceased. The policy issued on 19.5.1987 was comprehensive

and was valid till 18.5.1998. The Tribunal after considering the

evidence and the insurance policy awarded a sum of Rs.6,25,000/-

as compensation payable by the appellant-company along with 12%

interest per annum upto date. On appeal, being filed by the

appellant, the High Court after hearing both the parties at length

maintained the Award granted by the Tribunal but reduced the rate of

interest to 9% per annum instead of 12%. Aggrieved thereby the

present appeal has been preferred by the Insurance Company.

Counsel for the appellant-company argued that the original

policy issued by the appellant-company had an endorsement affixed

to it by which "I.M.T 13" was incorporated as a term of the policy and,

therefore, the premium paid by the owner could fetch only to the tune

of Rs.30,000/- as compensation per passenger. It is argued that the

premium amount paid was Rs.1290/- covering the risk of 43

passengers and, therefore, the amount per passenger comes to

Rs.30/- and as per the Indian Motor Tariff Rules the liability of the

company is only to the extent of Rs.30,000/- per passenger. It is

further argued that the company had filed true copy of the policy

before the Tribunal in which there is an endorsement "I.M.T.13", but

both the Tribunal and the High Court have committed an error in

placing reliance on the copy of the policy which was produced by the

bank manager, in which there was no endorsement "I.M.T.13" as in

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the case of the copy of the policy produced by the appellant-

company.

The above submission had been repelled by both the Tribunal

and the High Court. Both the Courts below have concurrently held

that the appellant had not led any evidence to prove that the policy

document which was filed by the appellant along with the written

statement was genuine and the same was issued to the insured.

There is no dispute that the appellant-company failed to lead any

evidence to prove that the copy of the policy filed by the company

was genuine. Such concurrent findings of fact based on appreciation

of evidence cannot be interfered with. There is a categorical finding

by both the courts below that the so-called insurance policy filed by

the appellant-company had not been proved, as no evidence was led

by the company. Both the courts below have concurrently held,

based on evidence, that the copy of the so-called policy produced by

the appellant in absence of proof thereof cannot be treated as a valid

document and cannot be relied upon. Such concurrent findings of

facts based on appreciation of evidence cannot be termed as

erroneous, which would warrant our interference, in exercise of our

jurisdiction under Article 136. Similarly, both the courts below have

relied upon the carbon copy of the policy, which was handed over to

the bank at the time of insurance of the vehicle, produced by the bank

manager. The bank manager was examined by the owner and in his

statement he had categorically stated that the policy document is one

which the bank had received in token of the insurance of the vehicle

through the appellant-company. Keeping in view the statement of the

bank manager which proved that the carbon copy is indicia of the

original copy of the policy, both the courts below were justified in

accepting the copy of the policy produced by the Bank Manager as

genuine documents. In other words the copy of the policy produced

by the Bank Manager has been proved as genuine. We are also of

the view, that the Bank Manager being an independent and

uninterested party, his evidence was rightly accepted by both the

courts as reliable and creditworthy. It is noticed that the schedule

attached to the policy indicates the excess payment of premium of

Rs.1290/- for covering the risk of 40 passengers. It is also noticed

that the liability of the appellant-company is unlimited. We have also

perused the policy and we find that there is no such endorsement

"I.M.T.13", as claimed by the appellant. We do not see any infirmity

in the findings recorded by both the courts below concurrently.

It is contended that the multiplier of 43 applied by the Tribunal

is erroneous. In this connection, the learned counsel for the appellant

had referred to the decision of this Court in U.P.State Road

Transport Corporation Vs. Trilok Chandra, (1996) 4 SCC

362, wherein this Court has held that the multiplier should not be

more than 18. The Tribunal while applying the 43 multiplier had

considered the age of the deceased being 27 years and if he had not

died in the accident he would have lived up to the age of 70 years

and one day he would have been promoted to the post of Chief

Engineer. Keeping the aforesaid background in view, the High Court

was of the view, that if the multiplier is reduced and multiplicand is

enhanced not much difference would be caused to the amount fixed

by the Tribunal. Even otherwise it is a trite law that the insurance

company is not capable to challenge the quantum of compensation.

Insurance is a covenant of good faith, where both parties are

covenanted to abide by the terms and conditions of the policy. In the

premises aforesaid, it is clear that the company has made a

deliberate attempt to escape the liability by introducing a copy of the

policy other than the insured. Often, the terms and conditions are

being respected more in breach than observance. Insurance

company must bear in mind that they are the trustee of the public.

Keeper of the public coffer. Often, even genuine claims are being

hotly contested in a routine manner by dragging the parties to courts,

wasting enormous time and money for the claimants to get their

claims settled. The Act like Motor Vehicles Act being a beneficial

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legislation aimed at quick redressal of the victims of accident arising

out of the use of motor vehicles, the attitude routinely adopted by the

insurance company would render the object of the Act frustrated. If

such instances are brought to the court, the court would be obliged to

dismiss the appeal with heavy costs, apart from deprecating such

practices.

CIVIL APPEAL NO.3783 OF 1999

This appeal had been filed by the claimants for the

enhancement of the compensation. On 13.4.2004 after the matter

was fully argued by the counsel for the insurance company, an

adjournment was sought for on the ground that Advocate-on-record in

this appeal was out of town. As the matter was connected with the

appeal preferred by the insurance company, it was adjourned for one

week for further hearing. On 20.4.2004 also, none appeared for the

appellants to press this matter. Even otherwise on merit also we do

not find any infirmity in the orders of the courts below which would

warrant our interference.

In the result both the appeals are dismissed. C.A. No. 5463 of

1998, preferred by the Insurance Company, is dismissed with costs.