New India Assurance Co.Ltd. vs Harun Azmi & Ors.
2009 Latest Caselaw 4947 Del

44
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +      FAO No.639/2001

                           Date of Decision: 2nd December, 2009
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      NEW INDIA ASSURANCE CO.LTD.         ..... Appellant
                    Through : Mr. Rajesh Kumar, Adv.

                  versus

      HARUN AZMI & ORS.                   ..... Respondents
                    Through : Mr. S.P. Sharma and
                              Ms. Shailja, Advs.
                              for R-2 & 4.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may               YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?              YES

3.      Whether the judgment should be                      YES
        reported in the Digest?

                        JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.2,00,000/- has been

awarded to claimants.

2. The accident dated 3rd October, 1999 resulted in the

death of Mamoon Azmi. The deceased was survived by his

parents, brother and sister who filed the claim petition before

the learned Tribunal.

3. The deceased was aged 26 years at the time of the

accident and was a student of second year of graduation in

Jamia Millia Islamia. The learned Tribunal presumed the

income of the deceased to be Rs.1,500/- per month,

deducted 1/3rd towards the personal expenses of the

deceased and applied the multiplier of 16 to compute the

loss of dependency at Rs.1,92,000/-. Rs.8,000/- has been

awarded for loss of love and affection and loss of estate.

Total compensation awarded is Rs.2,00,000/-.

4. The only ground urged by learned counsel for the

appellant at the time of hearing of this appeal is that the

liability of the appellant is limited to Rs.15,000/- and,

therefore, the appellant is not liable for the compensation

beyond Rs.15,000/-.

5. The learned Tribunal has held liability of the appellant

to be unlimited. The learned Tribunal has given a finding

that the carbon copy of the policy, Ex.RW1/1 is not legible.

There is no term and condition in Ex.PW1/1 about the liability

of the appellant to be limited. The learned Tribunal has

further held that in the column with respect to the premium

charged from the insured, the liability has been recorded as

unlimited and, therefore, the plea of limited liability raised by

the appellant was rejected by the learned Tribunal. The

learned Tribunal also rejected the plea of the appellant that

the Tariff Schedule supports the limited liability of the

appellant on the ground that the witness of the appellant

failed to explain how the policy, Ex.RW1/1 stipulate the

liability of the company to be unlimited. The learned counsel

for the appellant referred to and relied upon the carbon copy

of the insurance policy, Ex.RW1/1 which has been perused by

this Court. The document is not legible. That apart there is

no clause in the said policy limiting the liability of the

appellant to Rs.15,000/-. The insurance policy is a document

of contract between the parties and no clause can be

presumed which does not form part of the contract. The

learned Tribunal has given a well reasoned finding which

respect to the contention raised by the appellant. The

findings of the learned Tribunal are upheld.

6. The learned counsel for the appellant refer to and relies

upon the judgment of Hon'ble Supreme Court in the case of

Noorjahan vs. Sultan Rajia 1997 ACJ 1 in support of the

plea that the liability of the insurance policy in respect of a

passenger is always limited.

7. This judgment does not support the appellant as the

appellant has not succeeded in proving the terms and

conditions of the policy.

8. For all the above reasons, the appeal is dismissed.

9. The appellant has deposited the entire award amount

with this Court in terms of the order dated 4th August, 2009

and the said amount is kept in fixed deposit.

10. The learned counsel for the respondents submit that

respondent Nos.1 and 3 have expired and their shares have

devolved upon respondent No.2 who is the mother of the

deceased.

11. Respondent No.2 is substituted in place of respondent

Nos.1 and 3.

12. The Registrar General is directed to release a sum of

Rs.50,000/- to respondent No.2 and Rs.50,000/- to

respondent No.4 and the remaining award amount be kept in

fixed deposit in the name of respondent No.2 for a period of

one year on which monthly interest be paid to her but no

loan, advance or withdrawal be permitted during the said

period. The original fixed deposit receipt with proper

endorsement be released to respondent No.2.

13. The statutory amount be released to the appellant

through counsel within four weeks.

14. Copy of this order be given 'Dasti' to learned counsel

for both the parties under signature of Court Master.

J.R. MIDHA, J DECEMBER 02, 2009 mk