KOUSHALBAI Vs. AABIDALI

JUDGEMENT

(1.) These two appeals arise out of a common judgment dated 9-2-96 passed by 1st Appellate Court in M. A. 263/90 limiting the liability of the Insurance Company to Rs. 15,000/- per passenger. The all important issue that arises in the matter was whether Tribunal was duty bound to examine copy of insurance policy on record on its own without insurer taking the plea of limited liability specifically and without proving it in reference to the terms of policy.

(2.) Facts lie in a narrow compass. One Somariya, 35, died in a road accident while disembarking from the Bus. His claimants filed claim case No. 39/89. This was resisted by the insured owner and driver but the insurance company failed to file any written statement or to take any defence of its limited liability. M.A.C.T., Kukshi, on consideration of matter awarded compensation of Rs. 54,000/- to claimants with 12% interest holding both the insured and the insurer jointly and severally liable. The company, however, questioned this in M.A. No. 263/90 and for the first time took the plea of its limited liability by invoking provisions of Section 95 of M.V.Act. It did not place any policy document on record to show that the insurance contract did not stipulate liability in excess of statutory liability. The company, however, relied upon a judgment of Supreme Court in 1987 ACJ 872 : (AIR 1987 SC 2158) and a Full Bench judgment of this Court in 1988 ACJ 956 to suggest that Tribunal should have examined the record which also bore a copy of the policy submitted by the insured and should have declared the liability of the company to be limited. The contention prevailed with the 1st Appellate Court holding that it was the duty of Tribunal to look into the terms of the policy and to pass an award in tune therewith. The view taken is under challenge in L.P.A. No. 59/96.

(3.) The other Appeal (L.P.A. No. 362/98) is filed by claimants who have gone unrepresented today. In any case it would have been difficult to accept their Appeal because of concurrent finding by the Courts below on the quantum of compensation. This appeal is accordingly dismissed for non-prosecution.