JUDGMENT
Surinder Sarup, J.
1. This appeal has been filed by the New India Assurance Co. Ltd. against the award of the Motor Accidents Claims Tribunal, Bilaspur, dated 9.2.1994, whereby respondent Nos. 1 to 5 have been awarded compensation of Rs. 3,27,000 along with costs and interest at the rate of 12 per cent per annum from the date of filing of the claim petition till the realisation of the said amount.
2. The facts giving rise to the filing of the claim petition, as set out in the impugned award, are that the husband of respondent No. 1 Ram Piari, being father of respondent Nos. 2 to 5, i.e., Des Raj, met with a fatal accident on 4.6.1989 while driving his scooter. At that time, he was 34 years of age and employed as a teacher, drawing monthly salary, etc., in the sum of Rs. 2,000 approximately. On the fateful day, he was driving his scooter bearing registration No. HIB 786 on the side of Ghagas Bridge towards village Jukhala. At that time, he was accompanied by one Gorkhu Ram, PW 5, who was sitting on that scooter as pillion rider. While the scooter was in motion, a truck (Matador) bearing registration No. HID 8803, came from the opposite direction and struck against the scooter, causing injuries to both the above mentioned persons. Gorkhu Ram survived the accident but Des Raj died at the spot. The offending vehicle, i.e., the truck, was being driven at that time by respondent No. 7 in a rash and negligent manner, while respondent No. 6 was its owner at that time. The matter was reported to the police also on the same day at Police Station Sadar, Bilaspur through F.I.R. No. 73 of the same date. Postmortem of the dead body of Des Raj was performed on 5.6.89 at Bilaspur Hospital and a number of injuries, like multiple fractures were found by the doctor concerned, who opined that the death has occurred due to shock on account of head injury and multiple fractures. The claim petition was filed on 29.8.1989 claiming Rs. 6,00,000 as compensation.
3. Written statement was filed by respondent Nos. 6 and 7 before the Tribunal. It was pleaded therein that the accident had taken place due to the rash and negligent act of the deceased Des Raj and not due to the rash and negligent driving of respondent No. 7 as alleged. A separate written statement was filed by the appellant insurance company. Preliminary objections were taken therein to the effect that the driver of the insured vehicle was not having a valid driving licence; that the truck in question did not have any valid route permit, registration certificate and fitness certificate; and that the maximum liability of the appellant insurance company was limited up to Rs. 1,50,000 only as per the terms and conditions of the insurance policy which had been issued under the old Motor Vehicles Act (Act No. IV of 1939). On merits, it was denied that any such accident, as pleaded by the claimants, took place.
4. On the pleadings of the parties, the following issues were framed:
(1) Whether the claimants are entitled to the claim, if so, to what amount? OPP
(2) Whether the insurance company has only a limited liability? OPR
(3) Whether the insurance company is not liable to make the payment for want of valid driving licence, route permit, etc., as alleged? OPR
(4) Whether the petitioners are the legal heirs of the deceased? OPP
(5) Relief.
Issue No. 1 was decided in favour of the claimants holding them to be entitled to a compensation of Rs. 3,27,000. Issue Nos. 2 and 3 were decided against the appellant insurance company while issue No. 4 was answered in favour of the claimants, thereby resulting in relief being granted to them in the terms and to the extent mentioned above.
5. In the present appeal before us, the learned counsel for the appellant has not been able to show that the findings of the Tribunal under issue Nos. 1 and 4, which were discussed together and answered in favour of the claimants (respondent Nos. 1 to 5) by the Tribunal are erroneous in any manner. The Tribunal has placed reliance on the statement of the widow of the deceased, i.e., Ram Piari claimant. She appeared as PW 1 and deposed that she along with other claimants comprise the family of the deceased, being his widow and children, respectively. Nothing contrary was put to her in cross-examination. Thus, the finding under issue No. 4 in favour of the petitioners in the impugned award is well based. The only point that requires consideration in the present appeal and the same has been argued at length by the learned counsel for the appellant before us, is the extent of the liability of the appellant insurance company to indemnify the insured owner of the offending vehicle (Matador). It has been submitted by the learned counsel for the appellant that the statutory liability of the insurance company is only Rs. 1,50,000 and not the full awarded amount, which in this case is Rs. 3,27,000.
6. In support of his submission, the learned counsel for the appellant has drawn our attention to the insurance policy, Exh. R-l and its clauses Exh. R-2. A perusal of the same indicates that as against the portion comprising the words ‘increased third party liability’, in the column incorporating the payment of premium, the word ‘nil’ has been mentioned. This means that no extra premium was paid for any extra liability. The contents of the insurance policy vide Exh. R-l support and substantiate this submission of the learned counsel for the appellant. However, the Tribunal has dealt with this aspect of the case under issue No. 2 and has come to the finding that the liability of the insurer, i.e., the appellant insurance company to satisfy the claim of respondent Nos. 1 to 5 is unlimited. While doing so, the Tribunal has relied on the provisions of Section 95 (2) of the Motor Vehicles Act, 1939, hereinafter to be called ‘the Act’.
7. We do not subscribe to the view taken by the Tribunal to the effect that in the absence of any evidence on the part of the appellant insurance company to prove that there was no contract with the insured person contrary to the provisions contained in Section 95 (2) of the Act, the liability of the insurer was unlimited. The reason for this is, that irrespective of the fact as to whether there was any contract or not between the insurance company and the insured persons contrary to the provisions of Section 95 (2) of the Act, the very fact that no extra premium was paid for the increased third party liability, as is clear from the relevant clause in the insurance policy Exh. R-l, the limit of liability as prescribed by Section 95 (2) of the Act would hold good in the present case and that limit is Rs. 1,50,000 by virtue of Sub-section (2) (a) of Section 95 of the Act. We derive support for this view of ours from the rulings of the Apex Court in New India Assurance Co. Ltd. v. Shanti Bai 1995 ACJ 470 (SC) and National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC).
8. The matter can be looked at from another angle. Since respondent Nos. 1 to 5 had filed the claim petition before the Tribunal, it was for them to establish and prove that there was a contract between the insurer, i.e., the appellant insurance company and the insured, i.e., the owner of the truck in question (respondent No. 6) in terms of Section 95 (1) clause (iii) of the proviso. That they have failed to do as is clear from the evidence on record. It necessarily follows that in this situation, the limit of Rs. 1,50,000 as envisaged under Section 95 (2) of the Act would be applicable in view of the contents of the insurance policy Exh. R-l referred to above.
9. No other point has been urged.
10. For the reasons recorded above, this appeal is allowed to the extent that while upholding the impugned award the liability of compensation to be paid by the appellant insurance company, or indemnify the insured, i.e., the owner of the offending vehicle in the present case, is held to the extent of Rs. 1,50,000 only. In the circumstances, there will be no order as to costs.