NATIONAL INSURANCE COMPANY LIMITED Vs. RAMACHANDRAN

JUDGEMENT

(1.) THIS civil miscellaneous appeal by the insurance company is against the award of Rs. 1, 28, 000 granted by the Motor Accidents Claims Tribunal below in respect of a motor accident which took place on September 3, 1982 and which resulted in the death of one Prithivirajan whose legal representatives are the claimants-respondents Nos. 1 to 8. Learned counsel for the appellant insurance company submits that he is not attacking the finding of the Tribunal below regarding the negligence of the first respondent-driver of the offending vehicle or the other finding regarding the quantum of compensation granted. But, his only contention is that the liability of the appellant insurance company is restricted to Rs. 50, 000 as per the policy and that this aspect has not been considered at all by the Tribunal below. In fact this very appeal is only with reference to the quantum of award granted in excess of the above said Rs. 50, 000.

(2.) WE also perused the policy and we also find that the contention of the insurance company must be upheld. The Tribunal below has not considered this aspect at all, and has made all respondents Nos. 1 to 3 liable for the abovesaid entire sum of Rs. 1, 28, 000. Learned counsel for the tenth respondent, the owner of the offending vehicle, also could not dispute the legal position that the insurance company is liable in the present case only to the extent of Rs. 50, 000.

(3.) BUT the question here is how far Order 41, rule 33 of the Civil Procedure Code can be invoked by the tenth respondent-owner for reducing the compensation already granted. Such an interpretation cannot be put on Order 41, rule 33 of the Civil Procedure Code. In interpreting Order 41, rule 33 of the Civil Procedure Code, the Supreme Court in Choudhary Sahu v. State of Bihar, 1982 AIR(SC) 98, 1982 (1) Scale 161, 1982 (1) SCC 232, 1982 (2) SCR 178, 1982 UJ 86, quoted the following passage from its earlier decision in Nirmala Bala Ghose v. Balai Chand Ghose, 1965 AIR(SC) 1874, 1965 (3) SCR 550: