The main legal point established in the judgment is that the liability of the Insurance Company was not limited to the insured amount, as it had agreed to indemnify the insured against legal liability for fatal or non-fatal injury to any person other than the insured.

JUDGMENT

ANIL KSHETARPAL, J. - These two cross-appeals have come up for disposal. The FAO-6588-2010, has been filed by the Insurance Company, whereas, FAO-39-2011, has been filed by the claimants.

2. The correctness of the findings of the trial with respect to the manner in which the accident took place and the findings of the Tribunal with regard to the rash and negligent driving of driver Darshan Singh are not questioned. The accident took place on 12/8/2008, at about 08:00 p.m., when a road roller which was parked on the road without any indicator or parking lights contributed in the happening of the accident. The Tribunal after appreciating the evidence assessed the amount of compensation to the tune of Rs.27, 70, 000.00. The deceased late Sh. Rishi Pal died on 12/8/2008, while leaving behind aged mother, widow and two minor children.

3. The learned counsel representing the Insurance Company while drawing the attention of the Court to the Insurance Policy Ex.R-1 submits that ONE VIBRATARY ROLLER (SOIL COMPATOR) MODER EC5256 MAKE ESCORT was insured but the liability of the Insurance Company was limited to Rs.7, 90, 500.00. He submits that the Insurance Company cannot be made liable to pay the amount over and above the same. In other words, he claims that the liability of the Insurance Company is limited.

4. Per contra, the learned counsel representing the claimants has drawn the attention of the Court to the endorsements to the insurance policy at page 201 of the record which reads as under:-

"THIRD PARTY LIABILITY In consideration of the payment of the additional premium of Rs.1, 358.00 it is hereby agreed and declared that notwithstanding anything to the contrary stated in this policy, the Company will indemnify the insured:

a) against legal liability for the accidental loss or damage caused to the property of other persons.

b) against legal liability (liability under contract excepted) for fatal or non-fatal injury to any persons other than the insured or his own employees or employee of the owner of the works/site/premises/location or employees of the other firms/connected with any other work site/premises/location or members of the family of the insured or any of the aforesaid."

4. He contends that the in view of the aforesaid endorsements, the Insurance Company on receipt of the additional premium of Rs.1, 358.00, had agreed to indemnify the insured against legal liability for the accidental loss or damage caused to the person or property. He submits that clause (b) of the endorsement specifically includes legal liability for fatal or non-fatal injury to any person other than the insured. He submits that the Tribunal has correctly interpreted the provision of the aforesaid policy.

5. In FAO-39-2011, the learned Senior counsel appearing for the claimants submit that as per the Income Tax Return of the deceased for the assessment year 2008-2009, which has been produced in additional evidence, the yearly income was Rs.3, 43, 593.00. This return was filed on 30/8/2008. He submits that the Court erred in relying upon the Income Tax Return for the assessment year 2007-2008, which was filed on 19/10/2007. It may be noted here that an application for permission to lead additional evidence was filed in this Court on 3/8/2011, and notice of the application was issued to the Insurance Company on 20/11/2012, but no reply to the application has been filed. It is evident that there is acknowledgment of filing Income Tax Return for the assessment year 2008-2009, dtd. 30/7/2008. The gross total income of the deceased has been recorded at Rs.3, 43, 593.00.

6. It has further been brought to the notice of the Court that the Tribunal did not grant increase in the income on account of the future prospects as well as appropriate amount for loss of consortium was not granted by the Tribunal.

7. Per contra, the learned counsel representing