Judgment:
H.H. Kantharia, J.
1. This is the First Appeal by Insurance Company against the judgment and order dated 26th August, 1985 passed by the learned Member of the Motor Accidents Claims Tribunal, Dhule, in Motor Accidents Claim Petition No. 35 of 1983.
2. The short facts giving rise to the appeal are that deceased Rajjakkhan, aged about 27, who was working as Marketing Manager in Kiran Bidi Karkhana at Dhule and was getting a monthly income of Rs. 1,000/-, met with an accident on 10th January 1983 when he was returning from village Nihalod after attending a marriage ceremony. He was travelling with others in auto rickshaw No. MTS 5361 owned by respondent No. 5, Ratan Motiram Mahajan, and driven by respondent No. 6, Ramesh Baburao Gurao. As a result of he head injuries sustained by him in the accident, he died on 11th January, 1983 at Civil Hospital, Dhule. Therefore, respondent Nos. 1 to 4, being the wife and children of the said Rajjakkhan, filed application for compensation before the Motor Accidents Claims Tribunal, Dhule, claiming Rs. 1,00,000/- from the owner and driver of the vehicle and the appellant, New India Assurance Co. Ltd. The claim of the claimants was resisted by the owner and the driver of the vehicle in question on the ground that the accident did not take place on account of rash and negligent driving of the vehicle. The appellant-Insurance Company's contention was that at the time of the accident, the driver committed a breach of conditions of the insurance policy which permitted only three persons to be carried in the vehicle whereas six persons were carried at the relevant time. According to the appellant, in view of the breach of the condition of the policy, the Insurance Company was not liable to pay any compensation. At the same time, it was further contended that the liability of the Insurance Company was limited to Rs. 15,000/- only.
3. On appreciation of the evidence adduced before him, the learned Member of the Motor Accidents Claims Tribunal came to the conclusion that the claimants proved that deceased Rajjakkhan died on account of the rash and negligent driving of vehicle No. MTS 5361 by opponent No. 2 as the driver of opponent No. 1 and that the accident had not taken place on account of the negligence of the deceased. The learned Member of the Tribunal further held that the Insurance Company could prove that there was breach of policy condition as stated in para 7 of the written statement but still the Insurance Company was liable to pay compensation. In the result, the claim, of the claimants to the extent of Rs. 33,000/- was allowed and the Insurance Company and the driver and the owner were ordered to pay jointly and severally the sum of Rs. 33,000/- as specified in the impugned judgment and order with interest at the rate of 6% per annum from the date of application till payment was made.
4. Being aggrieved, the Insurance Company filed the present appeal.
5. Now, the only contention raised by Mr. Trivedi, learned Counsel appearing on behalf of the appellant-Insurance Company, is that the liability of the Insurance Company was only to the extent of Rs. 15,000/- under Section 95 of the Motor Vehicles Act, 1939 as also under the policy of insurance. We carefully examined the contention raised by Mr. Trivedi and we are unable to persuade ourselves to agree with him. The learned Member of the Motor Accidents Claims Tribunal, in para 13 of his judgment, has dealt with this contention very well and he was at pains to point out that though in written statement, the Insurance Company had contended that its liability was to the extent of Rs. 15,000/- only, during the course of the arguments its learned Advocate conceded that the limit of liability would be to the extent of Rs. 50,000/- in case of third parties. The learned Member of the Tribunal has correctly pointed out that even under the statute (i.e. under Section 95 of the Motor Vehicles Act, 1939) as well as under the Policy of Insurance, the limit of liability would be to the extent of Rs. 50,000/- and since the amount awarded to the claimants was less than Rs. 50,000/-, the Insurance Company was liable for the amount awarded to the claimants. We do not see any reason to interfere with this finding arrived at by the learned Member of the Motor Accidents Claims Tribunal and find no merits in the contention raised by Mr. Trivedi.
6. Appeal thus fails and the same is dismissed with costs.
7. Certified copies of this judgment to be furnished to the parties expeditiously, out of turn.