PIARA SINGH Vs. KAUSHALYA DEVI GEORA

JUDGEMENT

(1.) THE appellant, owner of the motor vehicle, laments limiting the liability of the Insurance Company to the extent of Rs. 10,000/- out of Award of Rs. 3,62,500/- passed by the Motor Accident Claims Tribunal on account of death of Nar Singh Lal Gera, who died due to rash and negligent driving of taxi, of which the appellant was the owner. The contention of the learned counsel for making the Insurance Company liable to pay the entire amount is sought to be supported from the column with the caption "limits of Liability" wherein, it is argued, it is mentioned that there would be no limit prescribed as regards the liability in case of death of a passenger in accident. This contention was raised before the learned Single Judge as well but was repelled by observing as follows :- "in the column of 'limits of Liability' against the words 'limits of the amount of the Company's liability under Section 11-1 (1), it is mentioned that "such amount as is necessary to meet the requirement of the Motor Vehicle Act, 1939". It makes the reference to the provisions of Section 95 of the said Act necessary. Sub-Sections (2) (i) and (iv) of Section 95 provides that a policy of insurance shall cover any liability incurred in respect of any one accident upto a limit of Rs. 50,000/- in all where the vehicle is registered to carry not more than 30 passengers and subject to the limit aforesaid, Rs. 10,000/- for each individual passenger where the vehicle is a motor cab.

(2.) IN view of the stipulation in the policy and the aforesaid provision of law, the support which the learned counsel for the appellant wants to derive from Shayam Lal and Ors. v. The New India Insurance Co. Ltd. and Anr. , 1979 ACJ, 208, is not available to him. " Faced with this observation of the learned Single Judge and finding no answer to the same, learned counsel for the appellant then invited the attention of this Court to endorsement No. 13 forming part of Insurance Policy Ex. RW1/1 which, according to the learned counsel, has been left blank. It is further argued that once the endorsement forming part of the policy is left blank, the Insurance Company would have unlimited liability. For the afore-stated contention, learned counsel relies upon an un-reported judgment of this Court in The United India Insurance Co. Ltd. v. Teja Singh and Ors. , LPA No. 392 of 1985, decided on April 15, 1986. The facts of this case reveal that the learned Single Judge had repelled the argument of limiting the liability of Insurance Company to Rs. 5000/- in each case with the following observations: "mr. Munishwar Puri, appearing for the Insurance Company, sought to raise the point that as the deceased in this case were passengers, the liability of the Insurance Company was limited to Rs. 5000/- in each case. This too is a contention which cannot be sustained. It being founded upon endorsement 13-A attached to the policy of insurance Ex. RX. This endorsement is a mere blank from with no writing on it whatsoever if once it is held that the Insurance Company is liable to pay compensation in respect of loss or injury to passengers travelling in the bus, unless there is material on record to show that the liability in this respect was limited, it must be taken to be unlimited. In this view of the matter, the Insurance Company as also the driver and owner of the bus must be held jointly and severally liable for the entire amount awarded. " The aforesaid findings of the learned Single Judge were affirmed by the Letters Patent Bench by observing that the relevant endorsement in the policy was blank and it was no where mentioned that the liability of Insurance Company was limited to Rs. 5000/- per passenger. From the facts of the case aforesaid, it is thus apparent that in the insurance policy, contents where of were under consideration by the Division Bench, it was no where mentioned that liability of the Insurance Company would be limited to Rs. 5000/- per passenger. Learned counsel representing the appellant in the said case being confronted with the situation, in fact, fairly conceded that the liability of the Insurance Company could not be limited to Rs. 5000/- per passenger. This judgment, in considered view of this Court, provides no assistance to the appellant. For the same precise reason, no reliance can successfully be placed upon judgment of this Court in Smt. Kako Devi and Ors. v. Gian Parkash Gupta and Ors. , (1990-1) 97 P. L. R. 483 as in that case as well there was no limit mentioned against the column dealing with the liability arising from death or bodily injury arising out of use of a motor vehicle. The Supreme Court in National Insurance Co. Ltd. v. Jugal Kishore and Ors. , (1988-2) 93 P. L. R. 128, held that "comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under the sub-section (2) of Section 95 of the Act. " In The Jullundur Transport, Cooperative. Society Ltd. v. Mrs. Raj Wall and Ors. , (1989-1) 95 P. L. R. 259, Division Bench of this Court held that "the parties can contract out of limited liability by paying high premium but the burden would always be on the owner of the vehicle to prove that there was special contract of payment of higher premium for enlarging the liability. "

(3.) BEFORE we part with this judgment, we would like to mention that the learned Single Judge placed reliance upon Full Bench decision of this Court in The Northern India Transporters Insurance Co. v. Smt. Amra Wati and Anr. , (1966) 68 P. L. R. 538 which are affirmed by the Supreme Court in M/s Sheikhpura Transport Co. Ltd. v. Northern India Transport Insurance Co. , (1971) 73 P. L. R. 722 as also Prem Devi v. Harbhajan Singh and Ors. , (1984)86 P. L. R. 459 and The New India Assurance Co. Ltd. v. The Samundri Roadways Co. Pvt. Ltd. and Ors. , (1984) 86 P. L. R. 689, for the preposition that stipulation for the limited liability in case of death of a passenger is in accordance with law. We find absolutely no infirmity in the judgment of the learned Single Judge and, thus, affirm the same dismissing the present appeal, leaving however, the parties to bear their own costs.