1.0 This appeal is directed against the judgment and award dated 19.08.1992 passed by the Motor Accident Claims Tribunal, (Main), Kachch at Bhuj (for short, “the Tribunal”) in Motor Accident Claim Petition No. 240 of 1987 whereby, the learned Tribunal awarded compensation in the sum of Rs. 600000/ along with interest at the rate of 12% per annum from the date of claim petition till the deposit.
2.0 On 25.05.1987 at about 10.30 a.m. Hemant Vasantbhai Thacker was proceeding on his scooter No. GJJ 8977. When he reached near the Kandla GandhidhamAdipur Road, a tractor bearing No. GRA 9698 came from the Tar road side. The tractor driver lost control over the vehicle and went on wrong side. Hemant tried to avert the accident by taking his scooter off the road on the left side, but could not succeed. He sustained serious injuries and ultimately succumbed to the injuries. The claimants therefore, filed the aforesaid claim petition before the Tribunal wherein the aforesaid award came to be passed which is challenged in the present appeal.
3.0 Learned advocate for the appellant contended that the learned Tribunal failed to appreciate the terms of the policy Exh. 58 issued by the appellant more particularly conditions stipulating “limits of liability”. He submitted that the insurance company has limited liability upto Rs. 150000/. He placed reliance on the decision of the Hon'ble Supreme Court in case of National Insurance Co. Ltd versus Nathilal and others reported in AIR 1999 SC 623. wherein in para 6 it is held as under:
“6. A perusal of the Insurance Policy, which has been exhibited through the witness examined on behalf of the Insurance Company, clearly shows that the Policy was in respect of seven passengers and one driver. The premium under PartB of Schedule of Premium paid as against the seven passengers at Rs. 12/ per passenger was shown as Rs.84/ and an additional sum of Rs. 8/ for the driver. In addition to this, a premium of Rs. 180/ was paid towards liability to public risk. As against unlimited liability to column, no premium was paid as is evident from the Policy. The mere fact that the column against unlimited liability was not filled, will not automatically lead to the inference that the liability was unlimited in the absence of any special premium paid towards that claim.”
4.0 In view of the fact that no extra premium was paid towards unlimited liability as it is clear from the policy, there would be limited liability of the Insurance company to the extent of Rs. 150000/.
5.0 Learned advocate for the appellant contended that learned Tribunal has overlooked the material fact that there was no dispute that the vehicle involved in the accident was a tractor to which trailer was attached and as such it was not necessary to lead evidence to show that it was a goods vehicle. He placed reliance on the decision of the Hon'ble Supreme Court in case of United India Insurance Co. Ltd. versus Manjulaben Purshottamdas Patel and others reported in 1994 (1) GLR 269 wherein it is held that the tractor was goods vehicle. He further placed reliance on the decision of the Hon'ble Supreme Court in case of Natwar Parikh & Co. Ltd versus State of Karnataka and others reported in (2005) 7 SCC 364 wherein it was held that tractor itself was not a transport vehicle but if it was used for carrying goods or passengers then it became a goods carriage as defined under Section 2(14) and consequently a transport vehicle under section 2(47) of the M.V. Act; that the trailer by itself was inert and had to be pulled by some motor vehicle; that if the tractor is used for carrying goods with the aid of a trailer it will constitute a goods carriage under Section 2(14) and consequently a transport vehicle under Section 2(47) of the Act liable for permit under Section 66 of that Act.
5.1 In the aforesaid case it is held that the tractortrailer falls under Section 2(14) as a “goods Carriage ” and vehicle in question was public carrier and it could not have carried passengers for hire or reward. The deceased were gratuitous passengers in the said vehicle. Since no distention could be made between the tractor and trailer, the deceased cannot be said to be third party. Therefore the vehicle in question is a goods vehicle and in view of the premium paid, there is limited liability under Section 92(2).
6.0 Learned advocate appearing for the appellant submitted that in view of the policy and in view content thereof and in light of Section 95 and 96 of the M.V. Act, 1939 the liability of the Insurance Company would be limited to Rs. 150000/.
7.0 Learned advocate for the respondent submitted that the liability of the insurance company should be taken as unlimited and not to the extent limited by the provisions of Motor Vehicles Act 1939. In support of his submission he placed reliance on the decision of this Court in case of National Insurance Co. Ltd. Vs Anjali and others reported in 2008 ACJ 1506. He further placed reliance on the decision of the Division bench of this Court in case of National Insurance Col. Ltd. Versus Kokilaben wd/o Naginbhai rameshchandra Joshi and others.
2003(2) GLR 1479 and in case of Kantibhai Valjibhai Shah versus Kokilaben Wd/o Haribhai Ambalal Patel and others 2009 (3) G.L.H. 692 wherein it is held that the person died in the accident is third party and therefore there would be unlimited liability of the Insurance Company.
8.0 Heard learned advocates for the respective parties and perused the documents on record. It is found from the policy that no extra premium was paid for unlimited liability. It is to be presumed that if the policy covers for unlimited liability, the premium for the same should be paid and in such case such premium would be shown in the policy. In the present case there is no such endorsement. Therefore the contention of the appellant is required to be accepted. Therefore, the insurance company is liable to pay compensation of limited liability of Rs. 150000/ only.
9.0 The appeal is therefore allowed. It is held that the appellant Insurance Company is liable to pay only a sum of Rs.1,50,000/. The excess amount shall be refunded to the appellantInsurance company with proportionate interest and costs. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants and the Insurance Company shall be at liberty to recover the same from the owner of the vehicle. The award of the Tribunal is modified accordingly. No costs.
(K.S.JHAVERI, J.) niru*