BHULLAN Vs. JASMER KAUR
LAWS(DLH)-1996-7-135
HIGH COURT OF DELHI
Decided on July 30,1996

BHULLAN Appellant
VERSUS
Jasmer Kaur Respondents




JUDGEMENT

USHA MEHRA, J. - (1.)BY this order cross objections filed by the respondent (claimant before the Trial Court) are being disposed.
(2.)SHRI Gurcharan Singh husband of respondent No. 1 Jasmer Kaur and father of respondents 2 to 5 i.e. Smt. Kartar Kaur, S. Gurdev Singh, S. Tirlochan Singh and S. Baldev Singh was killed in a motor vehicle accident on 8th June 1973. Claimants/respondents 1 to 5 filed a claim alleging rash and negligent driving on the part of the driver of Truck No. UPP -1505. In the said claim petition they claimed compensation to the tune of Rs. 1 lac. By the impugned judgment dated 22nd September, 1979 the learned Motor Accident Claims Tribunal (hereinafter called the Tribunal) awarded Rs. 68,260/ - as compensation to the claimants and restricted the liability of Insurance Company to the tune of Rs. 50,000/ - owner and driver of the truck felt aggrieved and filed the appeal which was listed as FAO No. 261/79. The same has already been dismissed. In that appeal cross objections were filed which are under consideration now.
Occurrence of the accident is not in dispute. This incident occurred because of the rash and negligent driving of the truck by the truck driver. Decision of the Tribunal on this point has not been upset so far. Rather from the dismissing of the appeal filed by the driver and the owner of the truck confirms that S. Gurcharan Singh died because of the rash and negligent driving of the truck by the driver. Hence the driver and the owner of the truck have rightly been held guilty for negligence and liable to pay compensation. The said truck was insured with M/s. National Insurance Company (hereinafter referred to as Insurance Company). In this regard a specific issue was framed by the Tribunal which reads as under: Whether the Insurance Company is not liable for the reasons alleged in the preliminary objections in its written statement?.

(3.)IN the written statement filed by the Insurance Company a plea was raised that its liability was limited to the tune of Rs. 50,000/ - in respect of any claim or service of claim arising out of one event. It was in this background that the issue was framed. The burden of this issue was accordingly placed on the Insurance Company to prove its limited liability. At the outset it must be mentioned that the Insurance Company except making a bald statement in the written statement did not lead any evidence. It did not produce nor proved the Insurance Policy. In the absence of any evidence having been led by the Insurance Company, the Tribunal, could not have concluded that the liability of the Insurance Company was limited to the extent of Rs. 50,000/ -. How he came to this conclusion cannot be inferred from the record of the Trial Court. In the impugned judgment, the Tribunal has discussed issues 1 to 3 but failed to discuss issue No. 4 i.e. of limited liability. Except giving finding on this issue in the concluding para, no reason assigned for arriving at this conclusion. This shows non -application of mind on the part of the tribunal. When Smt. Jasmer Kaur appears as PW -3 not even a suggestion was given to her that the liability of the Insurance Company was limited. Sh. Bhullan Singh driver of the Truck No. UPP -1505, appearing as his own witness as RW -1 never stated that liability of the Insurance Company was limited. Rather not even a suggestion was given to him in this regard. As pointed out above since no documentary evidence or otherwise was placed on record to prove limited liability, Tribunal fell in error in concluding that the liability of the Insurance Company was limited. Unfortunately, the Insurance Policy was also not placed on record. Therefore, the stand taken by Mr. O.C. Khullar Counsel for the Insurance Company that liability of the Insurance Company was to the tune of Rs. 50,000/ - only cannot be sustained.
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