General Assurance Society Ltd., Ludhiana v. Avtar Singh And Others .

Prem Chand Jain, C.J:— This judgment of ours would dispose of this and the connected appeal L.P.A No. 1222 to 1226 of 1983 as common question of law arises in all these appeals.

2. It is not necessary to state the facts, as the only point involved in these appeals in about the liability of the Insurance Company. It is submitted by the learned counsel for the appellants that in case his contention on the basis of which he wishes to distinguish the Division bench judgment of this Court in Shri Ajit Singh v. Sham Lal . 1984 86 PLR 314., then in view of the said judgment of the appeals are without any merit. What is sought to be argued by Mr. Malhotra, learned counsel for the appellants, is that the decision in Ajit Singh's case (supra) is not applicable to the facts of the case in hand, as a specific plea was raised by the insured himself that the liability of the Insurance Company was to the extent on Rs. 50,000/- only. In suport of this contention, the learned counsel made reference to an application made by the insured before the Tribunal, in which it is stated in para 7 that under the said policy of insurance, the liability of the Insurance Company is Rs. 50,000/- per case. The learned counsel also;, drew our attention to the grounds in the appeal filed by the insured against the award of the Tribunal, wherein also it is specifically stated that the liability of the Company was only to the extent of Rs. 50,000/-.

3. On giving our thoughtful consideration to the entire matter, we find that the learned counsel for the appellants has not succeeded in distinguishing Ajit Singh's case (supra). It may be observed that the Insurance Company did not take any plea nor did it lead any evidence before the Tribunal to show that its liability was only to the extent of Rs. 50,000/- only. The Insurance Company cannot take any benefit of the averment made by the insured in the Grounds of Appeal or in the application, especially when it has failed to take any plea or lead any evidence on this aspect of the matter. The relevant observations in Ajit Singh case (supra). Which clinch the whole issue against the appellants read as under:—

“Where the statutory provision in the question merely indicates the requirement about the policy and does not prohibit covering of greater risk by the insurer, it is the policy of the insurance company which could show the extent of the risk that the insurer had sought to cover. Where the insurance company for what ever reasons failed to bring on the record the policy of insurance it cannot be heard to say that it had agreed to indemnify the insured only to extent indicated in the statutory provision in question. In this regard reference may be made to Shyamla v. New India Ass. Co. Ltd. 1979 A.C.J 1208, United India Fire Genl. Ins. Co. Ltd., v. Pallamparry Indiramma 1982 A.C.J 527, and Jugal Kishore v. Raj Singh, 1982 A.C.J 503.

4. In this view of the matter, we find no merit in these appeals, and, consequently dismiss the same, but without there being any order as to costs.

Sd./- Sukhdev Singh Kang J.

R.M.S

Appeal dismissed.