ORDER
1. The insurer appellant has filed this appeal under Clause 10 of the Letters Patent of the Patna High Court against the judgment of the learned Single Judge passed on 8.8.2000 whereby its appeal against the award dated 3.7.99 passed by the First Addl. Motor Vehicles Accident Claims Tribunal was dismissed. The only ground of appeal urged by Mr. A.K. Sinha, learned senior counsel appearing on behalf of the appellant is that the insurer-company was not liable to indemnify the awarded amount in its entirety because in view of the conditions of the Insurance policy affecting offending vehicle, the insurance company had a limited liability of Rs. 1.50 lakhs and that being the case in terms of Section 96 of the Motor Vehicles Act, 1939, the appellant could not be
saddled with any award over and above the aforesaid amount of Rs. 1.50 lakhs. No other point has been urged.
2. The aforesaid contentions of Mr. Sinha, learned counsel for the appellant may be dealt with very very simply on two counts. First, the appellant did not raise this question before the Tribunal when it answered the claim petition filed by the claimants. Admittedly, before the Tribunal, the appellant did not set up any plea of any limited liability. The Tribunal went ahead and passed the award burdening the appellant with indemnifying the awarded amount in its entirety. The appellant for the first time raised such plea in the High Court by filing an application under Order XLI, Rule 27, CPC for adducing additional evidence. The learned Single, Judge, in appeal, has rejected the prayer of the appellant. We have considered that aspect of the matter and gone through a copy of the application shown to us by Mr. Sinha on behalf of the appellant and we feel that the learned single Judge correctly rejected the appellant’s prayer for adducing additional evidence under Order 41, rule 27 CPC. The other aspect on which the contention of the appellant has to be rejected is that avoidance clause in the insurance policy permits the appellant to recover the amount if any paid in excess of the liability from the insured. The learned single Judge has reserved that right in the judgment under appeal.
3. In a very recent judgment by the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Cheruvakkara Naffeessu and orders, 2001 (1) Jhr CR 186(SC) (Judgment delivered on 14.12.2000), their Lordships of the Supreme Court while dealing with the question relating to the interpretation of the avoidance clause in an insurance policy have clearly held that even in a case where the liability of the insurance company is limited statutorily on the basis of Section 96 of the Motor Vehicles Act, 1939, it is open to the Tribunal to burden the insurance company with indemnifying the award to the entirety of the awarded amount, because the avoidance clause permits and entitles the insurer to take steps for recovery of the amount, if any, paid in excess by filing suit against the insurer. The ratio in the judgment of the Supreme Court being clear, we have no hesitation in following the same by upholding
the judgment of the learned Single Judge dismissing the appeal.
4. Accordingly, this appeal is dismissed with costs throughout.
5. Appeal dismissed.