Gurdial Singh and Others vs Tara Wati and Others

S.S. Sodhi, J.—The challenge in appeal here is to the award of Rs. 1,40,000 as compensation to the widow and children of Moti Ram, deceased, who was killed when, while riding on the pillion seat of a motor cycle, he was knocked down and seriously injured by truck PNT 7373, coming from the opposite direction. This happened on September 9, 1977, at about 8 p.m. on the road between the new and the old bus stands at Bhatinda. Moti Ram, deceased, died soon after the accident as a result of the injuries sustained.

It was the finding of the Tribunal that the accident had been caused wholly on account of the rash and negligent driving of the truck driver, Babu Singh. This finding warrants no interference in appeal.

The case of the claimants, on the issue of negligence, rests upon the testimony of PW-4, Sham Lal, who was driving the motor cycle at the time of the accident and is corroborated by that of PW-3. Ram Kumar, whose presence at the spot clearly stands proved and is the most natural and probable. Further corroboration of the testimony of PW-4, Sham Lal, is provided by the first information report recorded on his statement soon after the occurrence. A consistent account of the accident finds mention therein. A reading of the testimony of these witnesses would show that there are no discrepancies or contradictions to create any doubt in the version they deposed to. A matter of material significance here is the non-appearance of the truck driver, Babu Singh, to depose on his side of the story, if indeed, it was in any manner different from the one put forth by the claimants. The claimants have, in fact, placed on record copies of the judgments of the trial magistrate as also the Additional Sessions Judge, Bhatinda, relating to the conviction of the truck driver, Babu Singh, for rash and negligent driving in respect of this accident and the dismissal of his appeal filed against this conviction. Such being the situation, the finding of negligence recorded against the truck driver must accordingly be upheld and affirmed.

As regards the quantum of compensation awarded to the claimants, the main criticism was against the multiplier being taken to be "18". It is no doubt true that the appropriate multiplier in this case should have been "16 ", but this by itself affords no occasion to warrant interference in appeal. As regards the dependency, no exception can be taken as it was based upon the Income Tax assessment orders relating to the deceased. The quantum of compensation awarded to the claimants thus also deserves to be upheld and affirmed.

The main controversy in appeal here was with regard to the liability of the insurance company. The Tribunal had held it to be limited to Rs. 50,000. The Tribunal clearly fell in error in holding so as it will be seen that no plea had been put forth by the insurance company that its liability was limited to this extent. Mr. V. P. Gandhi, counsel for the insurance company, sought, however, to press in aid the judgment of M. M. Punchhi J. in Puran Chand v. Balbir Singh [1986] 89 PLR 561 ; 1987] 61 Comp Cas 763 (P & H), where it was held that as the insurance policy had come on record, the court must give effect to its terms even though no plea had been raised in the written statement that the liability of the insurance company was limited and an amendment to incorporate such a plea in the written statement had been disallowed. A reading of this judgment would, however, show that it was only in the peculiar circumstances of that case that such a view had been expressed and it was specifically mentioned there. Further, none of the string of authorities where it has been consistently laid down by this court that the liability of the insurance company must be held to extend to the entire amount awarded, unless a specific plea to this effect is raised by the insurance company and the policy of insurance is also placed on record in support thereof appear to have been noticed in this case. The oft-repeated view of this court in this behalf must consequently be adhered to and followed.

The imperative requirement of a specific plea by the insurance company to limit or wholly absolve itself from liability is also amply brought out by the recent judgment of the Division Bench in General Assurance Society Ltd. v. Avtar Singh [1986] 89 PLR 683 ; [1987] 62 Comp Cas 218 (P & H). An argument had been raised by the insured there that the liability of the insurance company was limited to Rs. 50,000. No such plea had, however, been put forth by the insurance company itself, nor was any evidence led by it to show that its liability was limited to that extent, that is, to Rs. 50,000. It was held that the insurance company could not take any benefit of the averment made by the insured in the grounds of appeal or in the application when it had failed to take any plea or lead any evidence on this aspect of the matter.

It follows, therefore, that the liability of the insurance company must extend to the entire amount awarded as compensation to the claimants and no limitation can be placed upon such liability as was sought by counsel for the insurance company. In other words, the insurance company is liable for the entire amount awarded.

In the result, both the appeals of the driver and the owner of the truck are accepted to this extent. No one appeared on behalf of the claimants. The cross-objections filed by them are consequently hereby dismissed for default. There will, however, be no order as to costs.