NEW HIND TRANSPORT CO Vs. NIPPA PODDAR

JUDGEMENT

(1.) AMITAVA Lala, J. This is an appeal of the appellant/owner of the vehicle challenging the modified award dated 18th December, 1985 by which the original award of the self same date, whereunder both the owner and Insurance Company were fastened with joint and several liability, was modified. The contention of the learned Counsel appearing for the appellant/owner of the vehicle is that no notice was given to him before such modification of the award.

(2.) INCIDENTALLY on a query of the Court he contended that the learned Counsel appearing for the Insurance Company was also the Counsel of the owner and no change was obtained from him. Therefore, it cannot be construed by the Court at this belated stage, that the modification of the award was made without hearing the parties.

(3.) IN 2002 (1) JCLR 766 (All) : AIR 2002 SC 651, New INdia Assurance Co. Ltd. v. C. M. Jaya and Ors. , a Five Judges Bench held that the liability of the INsurance Company could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Motor Vehicles Act, 1939 prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. IN such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. If such judgment is read alongwith the ratio of the other judgment of the Supreme Court reported in 2005 (1) JCLR 987 (SC) : 2005 (58) ALR 3 (Consu), Polymat INdia (P) Ltd. and Anr. v. National INsurance Co. Ltd. and Ors. , it will be seen that in case of policy of insurance, terms of contract as contended in the insurance policy be construed strictly without altering the nature of contract. Therefore, under no circumstance unilaterally an INsurance Company cannot bind itself with limited liability after entering into the contract about unlimited liability.