NEW INDIA ASSURANCE COMPANY LIMITED Vs. NACHHATAR KAUR

JUDGEMENT

(1.) Against the award of the Motor Accident Claims Tribunal, the claimants had filed appeal for enhancement of compensation whereas the insurance company had filed appeal on the ground that its liability was limited to the extent to Rs.50,000.00These appeals came up for hearing on 14.11.2002, when no one was present on behalf of the insurance company, the Court decided both the appeals in the absence of the counsel for the insurance company. While compensation in favour of the claimants was enhanced and the appeal of the claimants being FAO NO.113/1999 was allowed, the appeal of the insurance company was dismissed in default. Subsequently, applications were filed for restoration of the appeal and for condonation of delay in filing the application for restoration. By order dated 14.10.2003, the appeal was restored and the matter was fixed for hearing today.

(2.) The only point taken in the appeal by the insurance company is that under the policy of insurance its liability was limited to Rs.50,000.00 and it could, therefore, not be directed to pay the entire compensation under the award and the Tribunal has clearly erred in holding that the liability of the insurance company was unlimited. I have seen the original policy of insurance which has been placed on the record of the Trial Court as Ex.RW3/2. It is clearly written on the policy that the liability of the insurance company was unlimited. Learned counsel for the insurance company contends that though it is written in the policy that the liability of the insurance company was unlimited, however, as no extra premium was charged from the insured, the writing of the "unlimited liability" of the insurance company in the policy appears to be a mistake.

(3.) I do not agree with learned counsel for the insurance company. Firstly once it is written on the policy that the liability of the insurance company is unlimited it cannot take a plea that there was a mistake in writing the word "unlimited" on the policy and secondly nothing has been placed on record to show that extra premium was not charged from the insured to make the liability of the insurance company unlimited. The onus to prove that extra premium was not charged was entirely upon the insurance company more so when the policy shows that its liability is "unlimited". Even during the cross-examination of the insured nothing has come out that extra premium was not paid by him. In the absence of any such evidence, I am unable to agree with learned counsel for the insurance company that its liability should be held to be limited to Rs.50,000.00. There is nothing on record to substantiate the contentions raised by learned counsel for the insurance company. I, therefore, do not find any merits in this appeal and the same is, accordingly, dismissed.