Hari Nath Tilhari, J.
1. Heard learned Counsel for the appellant Mr. O. Mahesh and Mr. CM. Desai for respondents.
2. This appeal arises from the judgment and award dated 5.1.1989, given in the M.V.C. No. 140 of 1987. The facts of the case are not much in dispute and the only question that has been raised relates to the extent of liability of the insurance company. The Tribunal on the basis of the evidence on record has come to the conclusion and has recorded the finding that the accident in question had taken place on the date and place, namely, on 3.11.86 at 8 p.m. at the place mentioned in the claim petition, due to rash and negligent driving of the vehicle in question, namely, Tempo bearing registration No. CNJ 6066, by its driver. The Tribunal assessed the loss of dependency to be Rs. 3,600 per annum and therefore, it assessed the loss of dependency on account of the death of Sidramappa, the son of the claimant No. 1, husband of the claimant No. 2 and father of claimant Nos. 3 and 4, and held that the claimants were entitled as such to the compensation for the loss of dependency to the tune of Rs. 39,600. The Tribunal also awarded a sum of Rs. 5,000 for loss to the estate and expectation of life. It has further awarded a sum of Rs. 2,000 towards funeral and obsequies. Thus in total the Tribunal held that the claimants were entitled to the compensation to the tune of Rs. 50,600. Tribunal held that the driver, owner and the insurance company, that is, the insurer were jointly liable to make the payment of the compensation along with interest at the rate of 9 per cent and the primary liability was that of the respondent in the claim petition, namely, the insurance company.
3. The insurance company having felt aggrieved from the award has come up in appeal before this Court. It has been contended by Mr. O. Mahesh, learned Counsel for the appellant that the Tribunal has committed error of law in fastening the liability for entire compensation along with interest on the insurance company, appellant. He submitted that at the most the liability of the company would be to the extent of Rs. 30,000 and not more.
4. I have applied my mind to the contentions of the learned Counsel for the parties. The document relating to insurance policy is on record. Under the head Premium-Liability to Public Risk, it has been mentioned additional premium for legal liability to passengers, six passengers premium indicate Rs. 180. Limit per passenger is not indicated, nor is limit per accident indicated. Under the head of third party limits, the liability shown to be unlimited under Section II-1 (i). Policy is a document of contract between the insurance company and the insured and it is compulsorily required to be taken under the Motor Vehicles Act, in particular, not for the benefit of the insured nor of the insurer, but for the benefit of the injured, or in case the person dies, for the benefit of heirs of the deceased in accident. It is also one of the well settled principles of law of evidence that when a contract is required to be entered into in the form of written document and the same has been entered in the form of written document whereunder the rights and liabilities flow, then to determine that it is the document that has to be looked into and no collateral evidence can be made use of to vary the terms of the contract. Insurance policy no doubt is a contract. When the limit of liability per passenger has not been indicated, it has to be taken that the limit is unlimited, particularly in view of third party liability head as well. Learned counsel for the insurance company submitted that the premium per head comes to Rs. 30 if Rs. 180 is divided by six and when the premium of Rs. 30 is paid, the extent of liability is Rs. 30,000 as per booklet issued by the insurance company. But that booklet is primarily meant to be used by the Agents and Inspectors of the company. When the booklet per se reveals that it is meant to be used only by the Inspectors and Agents of the company and is not meant for use or perusal by any man or public and this Court, particularly when it has not been filed as a piece of evidence, either before the Tribunal or before this Court, in appeal this Court cannot take notice of that document. The document on record is only Exh. R-1. Exh. R-1 does not indicate any such liability that it is limited to Rs. 30,000. If as contended by learned Counsel for the appellant that it was limited and as per document, the booklet of the insurance company, which has not been issued for the benefit of the public or for user of the public, it is for them to keep with themselves. Terms and conditions therein cannot be said to be binding either on the injured or the heirs of the deceased. When I so observe, I find support for my view from the decision of their Lordships of the Supreme Court in the case of United India Insurance Co. Ltd. v. M.K.J. Corporation, : (1997)ILLJ80Guj . It will be very appropriate at this juncture to quote certain observations of their Lordships, which their Lordships have made in this decision:. According to the learned Counsel, since the damage was caused due to the strike organised by the workmen of the insured, by operation of Clause (b), the appellant insurer is not liable for the loss to the goods while the leather remains unattended in its process during the period of strike. We are unable to agree with the learned Counsel. It is true that the Advisory Committee is a statutory body which has gone in and recommended the policies for riot, strike and malicious damages. The clause would exclude the insurance company from the coverage, if the loss or damage resulted from total or partial cessation of work or the retarding or interruption or cessation of any process of operation or omissions of any kind which would include strike by its workers. This may be due to either the operational inconvenience due to non-supply of the electricity or strike by the employees or any cause hut the insured must be put on notice of this cause.
It is a fundamental principle of the insurance law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of the fact and his believing the contrary. Just as the insured has a duty to disclose, similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since the obligation of good faith applies to them equally with the assured.
The duty of good faith is of a continuing nature. After the completion of the contract, no material alteration can be made in its terms except by mutual consent ...
5. In the present case, the document which is a private document on which the learned Counsel for the insurance company wanted to rely, not even mentioned that the liability is limited to the extent prescribed in the Tariff Rules for the period nor the extent of limit of liability is indicated in the insurance policy. When the insurance company did not disclose the liability and in regard to passengers, unlimited has been indicated, on going through the document or the policy it can only be held and has been rightly held that the liability is not limited, but as per agreement it is unlimited in case of passengers, otherwise it would have been indicated in the policy itself.
6. Thus considered in my opinion, learned Member of the Tribunal taking the liability limit and fastening the liability for payment of the entire amount of compensation on the insurance company, appellant, it did not commit any error of law or of jurisdiction. There being no document on the record to show that the liability is limited to Rs. 30,000, in my opinion, the finding recorded by the Tribunal is completely justified. Learned counsel for the appellant submitted that this plea was taken in the written statement, where it has been said that the company's liability is limited to Rs. 30,000. Raising of plea does not tantamount to giving evidence. Plea raised in the pleadings by itself does not become evidence. Evidence has to be adduced or produced. To prove the liability whatever document has been produced does not support the claim of the appellant that liability was limited to Rs. 30,000.
In this view of the matter, in my opinion there is no force in this appeal. The contention being devoid of merits the appeal has to be and is hereby dismissed. The award given is confirmed.
Learned counsel contended that it would be kept open to the insurance company to recover any amount in excess of the liability. I do not think there is any necessity, because the terms of the contract did not indicate at all that the liability was limited to Rs. 30,000 as per contract. In this view of the matter, I do not think there is any force in this appeal. The appeal is hereby dismissed.