Raising of claim of limited liability before Appellate authority not permissible.

This appeal is against the order passed by Motor Accidents Claims Tribunal, Salem in M.C.O.P.No.163 of 1983.

2. The petitioner in their petition contend as follows: The first petitioner is the wife and the petitioners 2 to 9 are the children of the deceased Seethapathy who was employed in the Tamil Nadu Electricity Board, Mettur Electricity System as a Foreman on a salary of Rs. 1,103.20 per month. On 11. 1982 at about 9.30 a.m., Seethapathy was proceeding from Athur to Kattukottai on his cycle in the Salem-Cuddalore Main Road, Taxi bearing registration No. M.D.G. 1990 and driven in a rash and negligent manner dashed against him from behind as a result of which, he sustained injuries and succumbed to the injuries on the spot. The respondents 1 and 2 are the owner and the insurer of the taxi. Deceased was aged 52 years at the time of his death. The petitioners make a claim for Rs. 1 lakh.

3. The second respondent in his counter contends as follows: The car M.D.G. 1990 has not been insured with the second respondent on the date of the accident. There is no privity of contract between them and the first respondent. The age and earning of the deceased are not admitted. Compensation claimed is excessive and the petition is liable to be dismissed.

4. The respondents 3 and 4 in their counter contended that the accident was due to the negligence on the part of the deceased and therefore they are not liable.

5. The Motor Accidents Claims Tribunal held an enquiry on the above pleadings and gave a finding that the accident was due to the rash and negligent driving of the car and awarded a compensation of Rs. 1 lakh payable by the respondents 3 and 4 jointly and severally.

6. Aggrieved over the same, the fourth respondent has come forward with this appeal.

7. The learned counsel appearing for the appellant has stated even at the outset. That this appeal has been preferred by the fourth respondent- Insurance Company, with regard to their liability alone and the appellant is not questioning the finding of the tribunal that the accident was not due to the rash and negligent driving of the bus, and the petitioners are entitled to a compensation of Rs.1 lakh. According to the learned counsel, the order of the tribunal that the compensation of Rs.1 lakh is payable by the respondents 3 and 4 jointly and severally is alone challenged in this appeal, in that the tribunal cannot direct the 4th respondent to pay more than Rs.50,000 which is the liability of the insurance company as per the terms of the policy. According to the learned counsel, the insurance policy which has been marked as Ex.A-4 would show that the basic premium alone has been collected and the vehicle is a passenger vehicle and as per Sec.95(2) of the Motor Vehicles Act (hereinafter called as ‘the Act’), the insurance company can be made liable only for the statutory liability and not anything more than that and in support of his case, relies upon the decision reported in New India Assurance Company Limited v. K.Chandra, 1991 A.C.J. 386, wherein, it has been held that in the case of a comprehensive policy, the extent of the liability of the insurance company under Sec.95(2)(b) of the Act, is not unlimited and insurance company is liable to the extent of Rs.50,000 only as per the statutory liability. The Division Bench has also referred to the decision of the two other decisions reported in National Insurance Company Limited v. Jugal Kishore, 1988 A.C.J. 270: A.I.R. 1988 S.C. 719 and Rajeswari Transports (Firm), Theni v. M.G. Rajan, 1982 A.C.J. (Supp.) 118 (Mad.), which decisions the Division Bench has followed.

8. The learned counsel appearing for the respondents would contend that in the decisions relied by the learned counsel, the Division Bench has not considered the effect of Secs.96(2) and 96(6) of the Act, and therefore, they may not be available to the benefit of the appellant. According to the learned counsel appearing for the respondent, the defence taken