UNITED INDIA INSURANCE COMOANY LIMITED Vs. SHOBHANABEN GIRISHBHAI

C. K. BUCH, J.

( 1 ) THE appellant-United India Insurance Company Ltd. , original opponent No. 3 has preferred this appeal against the judgment and award dated 31- 12-1985 passed by the M. A. C. Tribunal (Main) at Ahmedabad in M. A. C. Petition no. 76 of 1984. Original applicants are respondent Nos. 1 to 4 and original opponents, i. e. , driver and owner of the autorickshaw involved in the accident are respondent Nos. 5 and 6.

( 2 ) ). According to the original applicants-claimants, deceased Girishbhai was going on a scooter slowly and carefully towards Prakash Stores via Roopali theatre in the city of Ahmedabad on 21-4-1984 at about 2-30 p. m. When he reached "t" junction, the autorickshaw driven by the respondent No. 5 bearing registration No. GRS 3184 and owned by the respondent No. 6, came in a careless and negligent manner and while trying to overtake the victim scooterist, knocked him down from behind with great force, as a result of which he sustained serious injuries and was taken to the hospital, where he succumbed to the injuries on the next day. While deciding the claim petition preferred by the heirs and legal representatives of the deceased, the Tribunal awarded compensation of Rs. 1,50,000. 00 holding all the opponents, i. e. , driver, owner and Insurance Company liable to pay the said amount jointly and severally. It is against this award that the present appeal is preferred by the appellant-Insurance Company.

( 3 ) ). Considering the present settled legal position, the learned Counsel appearing for the appellant Insurance Company has confined his arguments only on the defence available to it under Sec. 95 of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) contending that the liability of the Insurance Company cannot exceed the Statutory limit of Rs. 50,000. 00 applicable in respect of the type of vehicle involved in the accident and the nature of the policy, and he has not pressed any other ground having bearing on the findings on the point of negligence or the quantum of compensation assessed by the Tribunal.

( 4 ) ). In sum and substance, the question raised is as to whether the Tribunal has committed an error in holding that Sec. 95 (2) (a) of the Act is applicable to the facts of the present case or not. The say of the appellant-company is that the learned tribunal has committed an error in fixing the liability of the Insurance Company at Rs. 1,50,000. 00 and that it ought to have held that the liability of the Insurance company was limited to Rs. 50. 000. 00 in view of the provisions of Sec. 95 (2) (b) of the Act. Mr. Nanavati. the learned Counsel appearing for the Insurance Company has assailed the reasoning given by the learned Tribunal in para 8 of the judgment that the vehicle, namely, the autorickshaw involved in the accident could have been a goods vehicle. Mr. Nanavati referred to the relevant part of the discussion during the course of his submissions and submitted that it was not the say even of the tribunal that the liability of the appellant against the third party was unlimited.

( 5 ) ). On going through the judgment, we find that two alternative submissions were made before the learned Tribunal. The first submission was that the liability of the Insurance Company qua the third party is unlimited and in the alternative, the liability should be fixed at Rs. 1,50,000. 00 in view of Sec. 95 (2) (a) of the Act. Mr. Nanavati referred to various decisions in support of his submissions. We, however, see no need to refer each of them because most of them relate person travelling in a vehicle. Our anxiety was to see as to how the phraseology of Sec. 95 (2) (b) has been interpreted by the Apex Court and the High Courts in similar context. In the case of New India Assurance Co. Ltd. v. Thakor Bhemaji Ganeshji and Ors. , reported in 1993 (2) GLR 1051 (FB) : 1993 ACJ 630, which was referred to by the learned Counsel for the ap

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