R.F.NARIMAN,J. - (1.) Leave granted.
(2.) On 09.06.1997, the husband of the Appellant No.1, who was a surgeon, was travelling in a mini-bus that was owned by the Rotary Eye Institute, Navsari (the Respondent No. 3 herein) along with other medical staff of the said Institute. The mini-bus had been driven with excessive speed, as a result of which at around 8.30 P.M. when the mini-bus was passing through the Gandevi-Navsari Road, near Kabhar Patiya, the driver of the mini-bus lost control and the vehicle turned turtle. The husband of Appellant No.1 was seriously injured and ultimately succumbed to his injuries.
(3.) On 17.04.1997, the Respondent No. 3 had entered into a comprehensive Private Car 'B' Policy from the New India Assurance Company Limited (the Respondent No. 1 herein). The aforesaid Insurance Policy was valid from 24.04.1997 till 20.04.1998. The limitation of liability clause which has been relied upon by the impugned judgment of the High Court is set out as follows: "SECTION II LIABILITY T THIRD PARTIES 1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use Motor Car against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of (a) death of or bodily injury to any person including occupants carried in the motor car (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured." In addition, endorsement IMT-5 states: "I.M.T.5. Personal Accidental cover to unnamed passengers other than the insured and his paid driver or cleaner. In consideration of the payment of an additional premium it is hereby understood and agreed that the Company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger other than the insured and/or his paid driver attendant or cleaner and/or a person in the employ of the insured coming within the scope of the Workman Compensation Act, 1923 and subsequent amendments of the said Act and engaged in and upon the service of the insured at the time such injury is sustained whilst mounting into dismounting from or travelling in but not driving the motor car and caused by violent accidental external and visible means which independently of any other cause shall within three calendar months of the occurrence of such injury result in: 15.jpg There is no dispute that additional premium was paid for endorsement IMT-5, which will therefore be applicable in the facts of this case. It is also undisputed that endorsement IMT-16, which deals with a general liability to employees of the insured who may be travelling in the employer's car, other than paid drivers, may also be covered on payment of an additional premium. It is undisputed on the facts of this case that as far as endorsement IMT-16 is concerned, no such additional premium was paid.;