NATIONAL INSURANCE COMPANY LTD Vs. HARISH CHANDRA GANGULY

JUDGEMENT

(1.) THIS is an appeal by the Insurance Company against a judgment of the learned single Judge passed on 23.9.1993 in M.A. No. 239 of 1992 (R), whereby the appeal filed by the appellant against the Award passed by the Motor Vehicles Accident Claim Tribunal, Dhanbad, was dismissed.

(2.) THE only ground urged by Mr. A.K. Sahani, learned counsel appearing for the appellant, is that the Insurance Company can not be held liable for payment of the compensation as per the Award passed by the Tribunal in its entirety, inasmuch as the appellant had a limited liability and, therefore, the Tribunal committed an error in passing an award against the appellant, ignoring the limited liability as was fixed in the Policy of Insurance. The learned single Judge has negatived this contention of the appellant on the ground that the policy of Insurance was not produced, exhibited or got proved before the Tribunal and, therefore, the said contention of the appellant cannot be acceded to.

(3.) IT is now a well established principle of law that if an Insurance Company has limited liability, based upon any term in the Insurance Policy, it becomes its duty to specifically take up such a plea in the written statement, to have an issue raised to that effect, to get the Policy proved during the course of trial and adduce such other evidence as would establish that, in fact, the liability of the Insurance Company was limited. Such is the mandate as contained in Section 96, read with Section 95, of the Motor Vehicles Act. 1939. Even though under Section 96, the Insurance Company is liable to indemnify the insured with respect to the award, under Section 95 if the liability is limited, the extent of indemnification is limited to such liability. But it does not mean that without raising such a plea or withoutproving this fact, by merely saying so, the Tribunal (or the Court in appeal) would be justified in allowing and giving such a limited liability of the Insurance Company. Since, the onus of proving this fact lies upon the Insurance Company and the Insurance Company having failed to discharge such onus, the Tribunal and/or the Court would be justified in fastening the entire liability upon the Insurance Company.