UNITED INDIA INSURANCE CO. LTD. Vs. AISABI

JUDGEMENT

(1.) THIRD respondent herein (second defendant) has not been served. In the light of what appears hereafter, we do not think that we need wait till he is served in this appeal.

(2.) THE first respondent herein filed the suit against the owner and driver of lorry KLP 5293 and the two insurers, third defendant (appellant) and fourth defendant (insurance department of the State) for damages and loss caused to her building by the lorry dashing against the same, at a time when it was driven by the second defendant. It was alleged that, on 22nd June, 1972, at about 6 p.m. the second defendant in the course of his employment under the first defendant, driving the lorry in the Jalsoor road in Kasargode, was proceeding southwards and he drove the lorry rashly and negligently and failed to keep control of the same, as a result of which the lorry struck a car coming from the south, swerved to the right, proceeded to a distance of 25 ft. in the road margin on the western side and dashed against the building. There are two shop rooms in the building. Three persons were injured. She, therefore, claimed damages from defendants Nos. 1 and 2 as well as from the insurers. Various defences were raised by the defendants. The court below accepted the plaintiff's case and awarded a sum of Rs. 13,258 -45 as damages against defendants Nos. 1 to 3 with proportionate costs and future interest. However, the court below exonerated the fourth defendant. The third defendant, private insurer (subsequently nationalised), being aggrieved by the decree, has filed this appeal.

(3.) THE second contention urged is that the court below erred in exonerating the State insurance department. The fourth defendant also is liable and the court, it is contended, would be justified in apportioning the liability among both the insurers and that would reduce the burden on the appellant. Learned counsel invited our attention to the provision in Section 95(1)(b), which requires an insurance policy, to the extent specified in Sub -section (2) to insure against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party. Therefore, it is argued, the insurance policy issued by the fourth defendant would necessarily cover the risk in regard to damage to any property of third party. Learned counsel would argue that the lower court was in error in holding that the liability of the fourth defendant did not extend to cover damage to the property of the third party.