Important points
1. Where insurance policy stated that liability would be for ‘unlimited personal injury and property damages’ it would not escape from its liability on the plea that the wordings were written wrongly due to mistake or oversight or on legal plea that liability was towards third party and not to insured.
2. Once a stand in fact is taken that fact could not be controverted by any legal proposition.

Judgment

The short question raised in this appeal is whether the words “unlimited personal injury and property damage” upto Rs. 10 lakhs for which premium of Rs. 134/- was paid as recorded in the insurance policy itself covers the death and bodily injury of the insured or not. According to the statement on behalf of the appellants, who are the claimants before us, the language used therein clearly indicates that the insured would also be covered under it, while submission on behalf of the insurance company is, this only co-relates to the damage of the property and has no correlation with the personal injury or death of the insured.

2. The short facts are that the appellant filed a suit for recovery of Rs. 603,000/- from the defendant-respondent, insurance company. The appellants are the parents of the deceased Mahendra Shirke, who died in the accident on 8th January, 1980. The said deceased obtained loan from Maharashtra Finance Corporation and Bank of Baroda under “Educated Unemployment Scheme” for purchasing goods truck in the year 1977. He obtained the said loan under the condition that he will drive personally the said truck. According to the appellants’ case, the deceased Mahendra insured his truck with the respondents to the tune of Rs. 10 lakhs, which is a comprehensive insurance covering risks for unlimited personal injury and property. The said truck was also insured as per the policy to the tune of Rs. 1,27,000/- for the damage to the property. It is not in dispute that on the date of the accident the said truck was covered with the said insurance policy. In fact, the question which we have to decide is the interpretation of the policy itself.

3. On these facts, the trial Court decreed the suit in favour of the appellants for the aforesaid amount alongwith interest @ 12% per annum. The trial Court while considering Issues No. 1 and 9 after considering the submissions of both the parties concludes that the payment of Rs. 134/- as premium was for the unlimited personal injury to the life of the insured as well as to the property to the tune of Rs. 10 lakhs and finally recorded its finding to the following effect :—

“Moreover, there is no iota of evidence to prove that the contents as against premium at Rs. 134/- as unlimited personal injury and damages to be Rs. 10 lakhs has been wrongly or mistakenly shown in that policy.”

4. This finding is recorded in view of the stand taken by the insurance company before the trial Court, namely, the recording of the words ‘unlimited personal injury’ was wrongly recorded therein. In support of this, reference is made by learned counsel for the appellants to the written statement filed by the insurance company, which is to the following effect :—

“The noting of `Unlimited personal Injury is redundant, the premium is accepted either to cover property damage or personal injury. It is due to oversight/mistake, the wording `Unlimited personal Injury’ is typed against the additional premium of Rs. 134/- .....”

5. Being aggrieved by the order of the trial Court, the insurance company filed an appeal before the High Court and by means of the impugned order the High Court set aside the judgment of the trial Court and allowed the appeal.

6. The High Court holds that insurance company is not liable to pay any compensation to the plaintiffs (appellants herein) on account of death of insured Mahendra under the terms of the said policy. This conclusion is drawn in view of the following findings :—

“Therefore, ultimately what we have to see in this case is the object of the payment of Rs. 134/- paid by the late Mahindra and accepted by the insurance company. As we read between the lines of the decisions referred to, we are of the view that the amount has been paid for covering the risk in excess of statutory liability in regard to the third party risks and not the personal injury or death of the insured.”

7. Learned senior counsel for the insurance company, Mr. Jitendra Sharma has referred to us to Section