IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL First Appeal From Order No. 364 of 2007 (OLD NO. 824/87) The New India Assurance Company Ltd. Through Branch Manager, Nainital ... Appellant Vs 1. Smt. Sabra Begum wife of Ehsan Ali 2. Smt. Saira Bano 3. Km. Jera Bano (Minors) daughters of Ehsan Ali under the guardianship of Smt. Saira Bano their own mother (All residents of Village Dhauchra, Tehsil Aonla, District Bareilly) 4. Mohan Chandra Joshi son of Mathura Joshi, resident of Shankar Bhawan, Tehsil and District Almorah ... Respondents Sri P. C. Maulekhi, learned counsel for the appellant. Sri Prabhakar Joshi, learned counsel for respondents no. 1 to 3. Sri Alok Mehra, holding brief of Sri Manoj Tiwari, learned counsel for respondent no. 4. Dated: February 28, 2008 Hon’ble B.C. Kandpal, J. This First Appeal From Order, under Section 110-D of Motor Vehicles Act, has been filed by the Insurance Company against the award dated 11.6.1987 passed by Motor Accident Claims Tribunal, Nainital in M.A.C. Case No. 71 of 1982, thereby allowing the claim petition and awarding a sum of Rs. 70,600/- as compensation to the claimants i.e. respondents no. 1 to 3. Brief facts giving rise to this appeal are that Ehsan Ali (deceased) was travelling in the motor- truck bearing Registration No. URB 5160 from Haldwani to Almora on 29.5.1982. When the truck reached Ratighat at Bhowali-Almora Road at about 6 A.M. it fell into the Khad (ditch) on account of rash and negligent driving of the truck driver, namely, Bhuwan Singh. Ehsan Ali fell with the truck into the Khad (ditch) and sustained injuries. He was initially shifted to local Civil Hospital at Garampani and from there he was again shifted to B.D. Pandey Hospital and was again shifted to Clara Swain Hospital Bareilly and on 6.6.1982 he succumbed to his injuries. The claimants have prayed for a total sum of Rs. 90,000/- as compensation. The owner of truck in question-Mohan Chandra Joshi (respondent no. 4) filed his written statement admitting that offending truck in question was insured by New India Assurance Company at the time of accident. He has also admitted his ownership over truck in question. The owner of vehicle has also admitted that the deceased Ehsan Ali was travelling in the ill-fated truck which fell into Khad and resulted the death of Ehsan Ali. The owner of vehicle denied the negligence on the part of driver of the truck and took and plea that on account of slippery road the truck suddenly slipped and fell into Khad. He has thus taken the plea that the accident was inevitable and the truck driver was not at fault. The Insurance Company has filed the written statement. The death of Ehsan Ali has not been disputed by the Insurance Company. The plea was taken by the Insurance Company that Ehsan Ali was not authorized or bonafide passenger in the truck and Insurance Company is not liable for any compensation. The Insurance Company has not denied that on the date of accident truck in question was not insured with the Company. It has also pleaded that owner of truck committed breach of condition of policy by carrying the deceased on hire, therefore, the Insurance Company is not liable for any compensation and whatever amount of compensation is to be awarded in the case, is to be paid by the owner of truck and not by Insurance Company. On the basis of pleadings adduced by the parties, the following issues were framed: (a) Whether the accident in question took place due to rash and negligent driving of Bhuwan Singh-driver of Truck No. URB 5160. (b) Whether the said truck at the time of the accident was not in a road worthy condition? If so, its effect? (c) Whether any expenditure was incurred in the medical treatment of Ehsan Ali? If so to what extent ? (d) Whether at the time of the accident road was wet and the said truck suddenly slipped and fell into the Khud as alleged by respondent no. 1? (e) Whether Ehsan Ali was being carried as a passenger in the aforesaid truck? If so, whether the term of the Insurance Policy was violated and respondent no. 2 is not liable for any damages? (f) To what amount of compensation and from which of the respondents is the petitioner entitled? (g) Relief? The Tribunal after having considered the pleading adduced by the parties and perusing the entire material available before it, allowed the claim petition for a sum of Rs. 70,600/- along with an interest @ 10% per annum from the date of institution of claim petition till the date of its payment, vide judgment and order dated 11.6.87. Feeling aggrieved by the aforesaid award, the Insurance Company has preferred the appeal before Allahabad High Court, which has been transferred to this Court after creation of State of Uttarakhand. Hear Sri P.C. Maulekhi, learned counsel for the appellant, Sri Alok Mehra, holding brief of Sri Manoj Tiwari, learned counsel for respondent no. 4 (owner of vehicle), Sri Prabhakar Joshi, learned counsel for respondents no. 1 to 3 (claimants) and perused the record. Learned counsel for the appellant has firstly contended that, in case, if, any liability is fixed on the Insurance Company by the Tribunal, then amount is not to be exceeded from Rs. 50,000/- in any case as per the Insurance Policy as well as statute. He has invited my attention towards the provisions of Section 95(2)(b) of Motor Vehicles Act, 1939, which reads as follows: (2)(b)- Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment. (i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all; Learned counsel for the appellant on the basis of aforesaid provisions has submitted that the liability of Insurance Company was limited to Rs. 50,000/- and the Tribunal was not justified in directing the payment of entire amount of compensation i.e. Rs. 70,600/- The argument advanced by learned counsel for the appellant has been vehemently opposed by learned counsel for owner of the vehicle in question by submitting that Insurance Company has not taken this plea in its written statement and this point has not been agitated before the Tribunal, therefore, the counsel for the appellant cannot agitate this point for the first time in the appeal. I failed to appreciate the argument advanced by learned counsel for respondent no. 5-owner of vehicle. Since the matter relates to jurisdiction of the Tribunal with regard to statutory liability which is upto extent of Rs. 50,000/- only, hence this point can be agitated at the stage of appeal also. Learned counsel for the appellant has also invited my attention towards following decisions of the Hon’ble Apex Court: (1) New India Assurance Co. Ltd. Vs. C.M. Jaya & others, reported in 2002 (3) T.A.C. 434 (S.C.) (2) Oriental Insurance Co. Ltd. Vs. Smt. Raj Kumari & others, reported in 2008 (1) T.A.C. 1 (S.C.) On the basis of aforesaid decisions, learned counsel for the appellant has emphasized on this aspect that the liability of Insurance Company would in the instant case be limited to quantum which was to be indemnified in terms of policy. Having considered the aforesaid judgments of the Apex Court, I am of the view that the liability of insurer would be limited to quantum which was to be indemnified in terms of policy. The policy has been filed by the owner of the vehicle before the Tribunal and on a bare perusal of the policy it appears that the liability of Insurance Company was upto extent of Rs. 50,000/- only. Therefore, to my mind, the Tribunal has fell in error by directing that the payment of entire awarded amount to be paid by the Insurance Company. As for as another submission raised by learned counsel for the appellant is concerned that the Insurance Company is not liable to make the payment of award as the deceased was the gratuitous passenger over the truck in question, the record reveals that Israr Ahmad (PW-2) was produced by the claimants and he deposed that he and his brother Anwar Hussain were engaged in the business of supply of goods and Ehsan Ali (deceased) was their servant. This witness further deposed that on the fateful day goods belonging to them were being transported in the truck in question from Haldwani to Almora and Ehsan Ali being servant of PW-2 was also travelling in that truck. Therefore, on the basis of aforesaid evidence, it is quite clear that the deceased was not travelling as a gratuitous passenger on the truck in question and there was no breach of Insurance Policy on the part of the truck owner. The findings recorded by the Tribunal in this regard are perfectly justified and do not require any interference by this Court. For the reasons stated above, the appeal is partly allowed and the impugned award dated 11.6.1987 is modified to the extent that the appellant/Insurance Company instead of paying the entire decretal amount, should pay an amount of Rs. 50,000/- (as statutory liability) along with interest, as has been indicated by the Tribunal in the impugned award. The rest of the awarded amount shall be paid to the claimants by the owner of the truck in question (Mohan Chandra Joshi) along with interest, as has been indicated in the impugned judgment and award. (B.C. Kandpal, J.) SP