* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ F.A.O. No.193 of 1995 & C.M. Appl. No.2476 of 1995
% 24.05.2010
THE NEW INDIA ASSURANCE CO. LTD. ...... Appellant
Through: Mr. Pankaj Seth, Advocate.
Versus
WAHID KHAN & ORS. ......Respondents
Through: Mr. Manjeet Chawla, Adv. for R-1 & 2.
Reserved on: 19th May, 2010
Pronounced on: 24th May, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. This appeal has been filed by the insurance company assailing the award dated 16th March, 1995 on the ground of liability of insurance company affixed by the court to pay the compensation.
2. There is no dispute that the vehicle in question was insured. The learned Tribunal had awarded a total compensation of Rs.1,44,000/- to the legal heirs of the deceased who died in the accident. The insurance company has taken a plea that its liability was limited to Rs.15,000/- as the deceased was a passenger and he was insured only upto Rs.15,000/-.
3. After the claim was filed, the insurance company had received notice of the claim wherein particulars of the insurance policy were given by the claimants. The insurance company admitted that the vehicle in question was insured with it. The insurance F.A.O. No.193/1995 Page No.1 of 3 company in the written statement itself had taken a stand that its liability was limited. It is settled law that if a stand is taken by the defendant/insurance company in the pleading that its liability was limited, the onus to prove that its liability was limited was on the insurance company. The insurance company did not place on record even the copy of the insurance policy, what was the premium charged and what were the terms and conditions of policy. Under these circumstances, the Tribunal held that the insurance company miserably failed to show that its liability was limited to Rs.15,000/- and held that it was the liability of the insurance company to pay the damages as assessed.
4. It is argued by counsel for the appellant that even if there was no proof adduced by the insurance company before the Tribunal, the Tribunal should have presumed that the insurance of the vehicle was subject to statutory liability and since the statutory liability was limited, the liability of the insurance company should also have been held as limited.
5. The contract of insurance is the contract between the insured and the insurance company. By this contract, the insurance company indemnifies the insured against the liabilities which the insured may incur due to accident either to the persons or to the property. Where it is admitted that there was such a contract indemnifying the insured and a plea is raised that under the contract the insurance company was not liable to make payment or that the liability was limited, the onus would be on the insurance company to prove such terms and conditions of the contract as were relevant in support of stand and then claim the benefit of those provisions. If the terms and conditions of the contract are not proved and admission is made that there was a contract of insurance, there is no law which requires the Tribunal to presume that the liability of the insurance company would have been limited.
F.A.O. No.193/1995 Page No.2 of 3
6. The Motor Vehicles Act only prescribes that a vehicle cannot be brought on road unless it is insured minimum to the extent provided under the Motor Vehicles Act but there is no presumption that every insured person would get his risk insured only to that limited extent as was necessary for the insured to bring vehicle on the road. Rather presumption is that every owner of the vehicle would get himself indemnified against complete Third Party Risk before plying a vehicle on the road. I, therefore, consider that this plea that Tribunal should have presumed the liability of the insurance company only limited to the minimum risk as provided under the Act, is not tenable.
7. I find no force in the appeal. The appeal is hereby dismissed.
SHIV NARAYAN DHINGRA J.
MAY 24, 2010 'AA' F.A.O. No.193/1995 Page No.3 of 3