FA/1688/1980 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1688 of 1980 With FIRST APPEAL No. 1548 of 1981 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= NATIONAL INSURANCE CO.LTD. - Appellant(s) Versus JAYRAJ N PATEL - Defendant(s) ========================================================= Appearance : MR SUNIL B PARIKH for Appellant(s) : 1,MR BR SHAH for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1 - 5. ( BHUPENDRA SHELAT) for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 14/03/2008 ORAL JUDGMENT 1. First Appeal No. 1688 has been filed by the insurance company challenging the judgement and award dated 11.02.80 passed by the Motor Accident Claims Tribunal, No. 1, Bharuch in Motor Accident Claim Petition No. 160 of 1979 whereby the original applicants were awarded a sum of Rs.72000/- as compensation with proportionate costs thereon along with interest at the rate of 6% per annum. FA/1688/1980 2/6 JUDGMENT 2. First Appeal No. 1548 of 1981 has been filed by the original opponent no.1 challenging the judgement and award dated 11.02.80 passed by the Motor Accident Claims Tribunal, No. 1, Bharuch in Motor Accident Claim Petition No. 160 of 1979 whereby the original applicants were awarded a sum of Rs.72000/- as compensation with proportionate costs thereon along with interest at the rate of 6% per annum. 3. The claim petition was filed in pursuance of an accident which had occurred on 11.06.79, at around 8.30 in the morning, while the now deceased Naginlal Nathubhai in company of one Shri Chandubhai Madhavbhai Nathubhai was coming from Ankleshwar side and going towards Bharuch on the old National Highway No. 8. Both these persons were riding a separate bicycle of their own. It appears that they were well on their left side of the road and were going at moderate speed when from the back side Matador-Tempo bearing registration No. GTK 4217 owned and driven by original opponent no. 1 towards Bharuch side came with excessive speed. Due to the rashness and negligence of the original opponent no.1 the bicycle of the now deceased was knocked down causing him injuries. The then injured Naginbhai was brought to Bharuch Civil Hospital from where he was referred to FA/1688/1980 3/6 JUDGMENT S.S.G hospital, Baroda on the very same day. However, the then injured Naginbhai succumbed to his injuries on 12.06.79. The original claimants being the widow, minor daughter and father of the deceased filed the claim petition before the Tribunal and the Tribunal after hearing the parties passed the aforesaid award. 4. Learned counsel for the appellant has contended that the Tribunal materially erred in law in not holding that the liability of the appellant was a limited liability to the extent of Rs. 50,000/- under the policy. He has submitted that the Tribunal has erred in not holding that the section 2 in the policy having heading “liability of the third parties” cover the entire risk and that the limit of the insurance company in this case is to the extent of Rs. 50,000/- only. 5. None appears for the original owner. 6. The insurance company has placed the original policy on record Ex. 40 and 47 of the record. A perusal of the said policy shows that the liability in respect of the now deceased, is limited to an extent of Fifty Thousand only. The heading “Limits of Liability” as per the policy reads as under: FA/1688/1980 4/6 JUDGMENT “Limit of the amount of the Company's liability under Section II-I (i) in respect of any one accident is such amount as is necessary to meet the requirements of the Motor Vehicles Act 1939 Limit of the amount of the Company's liability under Section II-I (ii) in respect of any one claim or series of claims arising out of one event .. .. Rs. 50,000/-” 7. In that view of the matter, the policy indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use (including the loading and or unloading) of the motor vehicle falling under section II-I (i) has been confined to “such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939.” This liability, as is apparent from clause (b) of sub-section (2) of Section 95 of the Act, was at the relevant time Rs. 50,000/- only. This view is supported by a decision of this Court in the case of National Insurance Co. Ltd. Vs. Jugal Kishore reported in 1988 ACJ 270. 8. I have also gone through the award of the Tribunal more particularly paras 16, 17 and 18 where the Tribunal has in detail explained the reasons for taking the aforesaid view. However, I am not in complete agreement with the reasonings adopted and findings arrived at by FA/1688/1980 5/6 JUDGMENT the Tribunal. In the instant case the appellant did not undertake in the policy any liability in excess of the statutory liability and therefore the award against it could be only in accordance with the said statutory liability which in the present case is Rs. 50000/-. 9. As a result of perusal of records of First Appeal No. 1548/81, this Court is in complete agreement with the reasonings adopted and findings arrived at by the Tribunal. The Tribunal has gone through the evidence on record in detail and come to the conclusion that the original owner is liable to pay the aforesaid amount of compensation. This Court is not inclined to cause any interference in the award qua the original owner- appellant of First Appeal No. 1548 of 1981. Therefore, this appeal is required to be dismissed. 10. In the premises aforesaid, the First Appeal No. 1688 of 1980 is partly allowed. The Insurance Company is at a liberty to recover the amount from the original claimants if the amount is already withdrawn by them and if it is not withdrawn then the Tribunal shall pay the amount deposited by the Insurance Company i.e. Rs. 22000/- with proportionate interest and costs. The award stands modified to the extent that the amount awarded against FA/1688/1980 6/6 JUDGMENT the appellant will be Rs.50000/- with running interest thereon at the rate of 6% per annum from the date of the application till realization. The remaining amount lying in the FDR along with interest shall be refunded to the Insurance Company. It will be open to the original claimants to recover the remaining amount from the original owner. The award dated 11.02.80 passed by the Motor Accident Claims Tribunal, No. 1, Bharuch in Motor Accident Claim Petition No. 160 of 1979 shall stand modified accordingly qua the Insurance Company. 11. First Appeal No. 1548/1981 stands dismissed. The award dated 11.02.80 passed by the Motor Accident Claims Tribunal, No. 1, Bharuch in Motor Accident Claim Petition No. 160 of 1979 qua the original owner- appellant of First Appeal No. 1548/81 is hereby upheld. No order as to costs. [K.S. JHAVERI, J.] Divya//