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2011 DIGILAW 2564 (RAJ)

United India Insurance Co. Ltd. v. Maganbhai Avtarambhai Patel

2011-11-24

K.S.JHAVERI

body2011
Hon'ble JHAVERI, J.—This appeal is directed against the judgement and award dated 21.02.1997 passed by the Motor Accident Claims Tribunal, (Auxi), Baroda in MACP No. 1005 of 1987 whereby the said claim petition was allowed and the claimant was awarded a sum of Rs. 50,000/- 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 19.06.1987 near Fatehganj fountain when the autorickshaw in which the claimant was travelling turned turtle. The auto was being driven in a rash and negligent manner. As a result of this accident the claimant sustained serious injuries and fractured his left hand. The claimant therefore filed claim petition claiming Rs. 50000/- as compensation. After hearing the parties, the Tribunal passed the aforesaid award. 3. Learned counsel for the appellant has contended that in view of the specific provision contained in Section 95(2)(b)(ii) of the Motor Vehicles Act, the Insurance Company's liability in respect of passenger carried for hire or reward is limited to Rs.15000/- because the accident occurred before the new Act came into force. 4. Mr. Chirag Patel, learned advocate appearing for Mr. B.S. Patel for the claimant supported the award of the Tribunal and submitted that the Tribunal clearly appreciated the copy of insurance policy Ex. 137 wherein the column of limit of liability was kept blank. In support of his submissions, Mr. Patel has relied upon a decision of this Court in the case of United Fire & General Insurance Co. Ltd vs. Manibehn widow of Govindbhai Ramjibhai and Others reported in 1992(1) GLH 1 . 5. This court has perused papers on record more particularly the impugned award. The copy of the original policy produced by the owner Ex. 37 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. 6. In this regard the decision in the case of United Fire & General Insurance Co. Ltd (supra) is applicable to the facts of the present case. Relevant paras of the said decision read as under: "8. 6. In this regard the decision in the case of United Fire & General Insurance Co. Ltd (supra) is applicable to the facts of the present case. Relevant paras of the said decision read as under: "8. In view of the abovesaid position we are of the opinion that the learned Tribunal was perfectly justified in coming to the conclusion that the insurance company was not able to establish that its liability was limited to a stipulated extent. Mr. Patel as noticed above had tried to urge before us that, as no amount has been shown in the abovesaid printed blank, one could presume or accept that the limited liability was accepted by the insurance company. We are in complete disagreement with the above-said statement made by Mr. Patel. On the other hand, we feel that if the insurance company had accepted a limited liability, it was the bounden duty on the part of the insurance company to say so very clearly in endorsement No. 13 (b) attached to and forming part of the policy. It should not be overlooked that the policy itself shows in the column of special conditions the existence of endorsement No. 13 (b). Therefore, when the abovesaid policy was prepared the insurance company knew it well that there is an additional endorsement, namely, endorsement No. 13 (b) attached to and forming part of the policy. In view of this position if the liability of the insurance company were to be made limited there must have been a specific mention of the same in the endorsement No. 13 (b). We feel that as the printed blank is kept open and the amount in Rupees has not been shown, one would legitimately come to the conclusion that there was no limitation on the liability of the insurance company. To take the other view around would result into a hazardous position. Merely because the gap has not been filled in and merely because the printed blank has been kept open, it cannot be presumed or inferred that the insurance company had accepted the limited liability. ... 13. The abovesaid three decisions, therefore, clearly support the view which we are going to take in this matter. Merely because the gap has not been filled in and merely because the printed blank has been kept open, it cannot be presumed or inferred that the insurance company had accepted the limited liability. ... 13. The abovesaid three decisions, therefore, clearly support the view which we are going to take in this matter. We, therefore, say that because the printed gaps in endorsement No. 13 (b) attached to and forming part of the insurance policy were kept open it can never be inferred that the liability of the insurance company was limited to the statutory limits. On the other hand, we say it, rather expressly, that when the said printed blanks have been kept open it would mean that there was no restriction or limitation on the liability which has been accepted by the insurance company under the contract between the insurance company and the insured. No other view except the abovesaid one, which we are taking, is possible." 7. In view of the above, the contention of limited liability raised by the learned advocate for the appellant cannot be accepted. The Tribunal is just and proper in not limiting the amount of compensation payable to the claimant. Accordingly, appeal is dismissed being devoid of any merits. No costs.