NEW INDIA ASSURANCE CO LTD Vs. JASSIBAI

JUDGEMENT

(1.) The only point which is involved in this appeal is in respect of liability of insurance company, the appellant, for making good the loss caused to the respondents who are the legal representatives of deceased Dashrath Anjana, who died due to the injuries sustained by him in motor accident which took place on 20.4.1988. The Tribunal held that the liability of insurance company was unlimited and was not restricted to a sum of Rs. 15,000 per passenger up to the last limit of Rs. 1,00,000. The Tribunal granted compensation to the LRs of deceased Dashrath Anjana to the tune of Rs. 82,800 along with interest at the rate of 12 per cent per annum, from the date of the claim petition to the date when the award amount would be realised. Mr. Dandwate, counsel appearing for the appellant, the insurance company, submitted that keeping in view the annexure to the policy, which is in the nature of addenda the liability of appellant was restricted to Rs. 15,000 per passenger and to a sum of Rs. 1,00,000 in all. He submitted that in view of that, the Tribunal committed an error of law in misreading the policy as well as the evidence of Jatawa, the witness of the appellant. He submitted that the Tribunal should have held that in all, the liability was up to Rs. 1,00,000 only for all the passengers and, therefore, the Tribunal should have awarded compensation of Rs. 15,000 to the LRs of deceased Dashrath and nothing more. Mr. O.K. Neema, counsel for the respondents, by reading the said addenda pointed out that the insurance company has not taken the care to score the words 'per passenger'. He has submitted that the witness of the appellant, Jatawa, has also stated in his evidence that the liability range was increased from Rs. 1,00,000 to Rs. 1,75,000 per passenger.

(2.) After examining the impugned award, evidence of Jatawa and the addenda to policy, it will have to be held that the Tribunal has correctly assessed the liability of the insurance company to the extent of Rs. 82,800 payable to LRs of deceased Dashrath who died as passenger in the said accident. The said addenda mentions that the liability of insurance company was raised from Rs. 15,000 per passenger to Rs. 1,00,000 per passenger. Had there been intention otherwise, the insurance company, the appellant, would have taken care to score the said words 'per passenger', or would have taken care of examining its officer, who had executed the said policy along with addenda. The appellant insurance company did not examine that officer though there is nothing on record to show that he was not traceable or available for examination for substantiating the case of the appellant. If at all, the insurance company wanted to canvass that the total liability of insurance company was restricted to Rs. 1,00,000 only, the burden of proving that was on the shoulder of insurance company. The appellant has not taken care in that context and, therefore, it has to thank or blame itself.

(3.) PW Jatawa's evidence shows that he does not have the personal knowledge of the execution of the policy and the addenda. He has stated in his evidence that by raising premium amount the extent of liability per passenger was raised from Rs. 1,00,000 to Rs. 1,75,000 per passenger. If at all the insurance company, the appellant was displeased with some statements of its own officer, the appellant insurance company was at liberty to put question in the nature of cross-examination to its own witness for the purposes of putting him on right track but that course has also not been followed. That could have been done by the appellant's counsel by seeking permission of the Tribunal, in its own interest. Even that has also not been done.