1.0 Learned advocate for the appellant is permitted to delete respondent No. 5 from the title clause of the first appeal.
2.0 This appeal is directed against the judgement and order dated 14.09.1992 passed by learned Motor Accident Claims Tribunal (Main), Rajkot, in Motor Accident Claim Case No. 165 of 1986 whereby the learned Tribunal awarded compensation in the sum of Rs. 1, 32, 000/ to the claimants along with interest @ 12% from the date of the application till its realization.
3.0 On 22.11.1985 Dhirajlal along with others was standing near the place of occurrence. At about 9.00 p.m. the police vehicle No. G.J.E 6288 insured with the appellant Insurance Company came in a rash and negligent manner and dashed against Dhirajlal and others as a result of which Dhirajlal died on the spot. The parents of the deceased filed the aforesaid claim case before the Tribunal which came to be partly allowed by passing the aforesaid award which is under challenge in the present appeal.
3.0 Learned Advocate for the appellant contended that the liability of the Insurance company was only to the extent of Rs. 50,000/; that the learned Tribunal has wrongly held that the third party risk is unlimited; that the Insurance Company is restricted to the extent of Rs. 50,000/ for each claim by virtue of policy at Exh. 53 because offending vehicle is a public service vehicle and as per statutory liability the Insurance company is liable to maximum of Rs. 50, 000/ as per Section 95(2)(i) with respect to third party. He submitted that the aforesaid contention was raised before the Tribunal and inspite of that the same was not considered by the learned Tribunal.
4.0 Learned advocate appearing for the respondents supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
5.0 Heard learned Advocates for the parties and perused the documents on record. The Exh. 53 Insurance Policy which was produced before the Tribunal shows that the motor vehicle No. G.J.E. 6288 was insured with the appellantInsurance Company from 01.01.1985 to 31.12.1985. The statute envisages that so far as persons other than passengers carried for hire or reward mentioned in the first part of clause (b) is concerned, the limit of liability is Rs. 50,000/.
6.0 As per the Exh. 53, there is limited liability to the extent of Rs.50,000/. In the present case, the vehicle involved is a police vehicle and therefore, the liability is to the extent of Rs. 50,000/. The contention raised by the learned advocate for the appellant is accepted. The insurance Company is liable to pay compensation to the extent of Rs.50,000/. The State Government is liable to pay compensation for the balance amount. The balance amount of compensation shall be withdrawn by the Insurance Company if it is lying in F.D.R. If the claimants had not withdrawn the amount, they are at liberty to recover the balance amount from the State Government. If the claimants had withdrawn the amount,the Insurance Company is at liberty to recover the amount from the State Government. The appeal is allowed to the aforesaid extent with no order as to costs.
(K.S.JHAVERI, J.) niru*