1. This appeal is directed against the judgement and award dated 18.09.1997 passed by the Motor Accident Claims Tribunal, (Main), Surat in MACP No. 520 of 1989 whereby the said claim petition was allowed and the claimant was awarded a sum of Rs. 3,82,000/- along with interest at the rate of 12% per annum.
2. The claim petition was filed in pursuance of an accident which had occurred on 27.03.1989 when Shri Mansukhbhai was riding on a scooter as a pillion rider. A tractor trailer came from the opposite direction and collided with the scooter. As a result of this accident Shri Mansukhbhai sustained serious injuries and succumbed to the same. The claimants being legal heirs and representatives therefore filed claim petition claiming Rs. 5,00,000/- as compensation. After hearing the parties, the Tribunal passed the aforesaid award.
3. Mr. Sunil Parikh, learned counsel for the appellant has contended that in view of the specific provision contained in Section 95(2)(a) of the Motor Vehicles Act, the Insurance Company's liability shall be only to the extent of Rs. 1,50,000/-. He submitted that the Tribunal has erred in coming to the conclusion that the appellant had not proved its case regarding limited liability. In support of his submissions, Mr. Parikh has relied upon a decision of this Court in the case of National Insurance Co. Ltd vs. Nathilal and Others reported in AIR 1999 SC 623.
4. This court has perused papers on record more particularly the impugned award. The copy of the original policy produced by the claimant clearly shows that the column of limit of liability was kept blank and the Tribunal therefore came to the conclusion that it cannot be said that there is a limited liability of the insurance company.
5. In this regard the decision in the case of National Insurance Co. Ltd (supra) is applicable to the facts of the present case. Relevant paras of the said decision read as under:
“5. The only ground, which weighed with the Tribunal as well as with the High Court, that one column was left blank in the Insurance Policy and, therefore, the case of the Insurance Company was that its liability was limited, cannot be accepted.
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 Part-B 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.
8. In the light of the above ratio laid down by this Court and in view of the fact that no extra premium was paid towards unlimited liability as is clear from the Policy produced before the Tribunal, the judgment and order of the Tribunal affirmed by the High Court cannot be sustained and are, accordingly, set aside. The liability of the Insurance Company is limited to Rs. 15,000/-. The Award of the Tribunal will accordingly stand modified insofar as the liability of the appellant- Insurance Company is concerned.”
6. In view of the above, the contention of limited liability raised by the learned advocate for the appellant is required to be accepted when the premium under Part-B of Schedule of Premium paid is shown as Rs. 36/- and an additional sum of Rs. 8/- for the driver is paid. In addition to this, a premium of Rs. 36/- was paid towards liability to public risk. As against unlimited liability column, no premium was paid as is evident from the Policy. This will not automatically lead to the inference that the liability was unlimited in the absence of any special premium paid towards that claim. The decision of the Apex Court is squarely applicable on the facts of the present case.
7. In the premises aforesaid, appeal is allowed. It is held that the liability of the original opponents no. 1 & 2 – present respondents no. 6 & 7 shall remain intact to meet the entire claim awarded with interest as awarded by the Tribunal. However, so far as the present appellant - Insurance Company is concerned, the award will stand modified and the amount awarded against the appellant will be Rs. 1,50,000/- with running interest thereon at the rate of 12% per annum from the date of the application till realization. It will be open to the original claimants to recover the remaining amount from respondent nos. 6 & 7 i.e. original opponent nos. 1 & 2. The remaining amount lying in the FDR along with interest shall be refunded to the Insurance Company. However, if the amount is withdrawn by the original claimants, the same shall not be recovered. It will be open for the insurance company to recover the same from the owner and if the amount is not paid to the claimant it will be open for them to recover the same from the owner. The award of the Claims Tribunal shall stand modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//