THE NATIONAL INSURANCE CO.LTD v. SAIFUDDIN MULLA YUSUFALI DAHODWALA

CORAM : ACTING CHIEF JUSTICE MR.JN BHATT MR.JUSTICE A.L.DAVE Date of decision: 13/08/2003 ORAL JUDGEMENT (Per : ACTING CHIEF JUSTICE MR.JN BHATT)

1.(cid:9)By this Appeal, the appellant, original opponent no.3 in Motor Accident Petition No.1385 of 1986, has assailed the judgment and award of the Tribunal dated 29-03-1990, mainly on the premise that the liability of the appellant as insurer is restricted to the extent provided under the provisions of the Motor Vehicles Act, 1939 (for short `the Act') as the coverage of the insurance in respect of the offending vehicle at the relevant time has been by virtue of the Act Policy and no wider liability had been accepted by the insurer.

2.(cid:9)In order to examine and evaluate the sole proposition involved in this Appeal, we have heard the learned advocates appearing for the parties at a greater length. We have also dispassionately considered the evidence on record as well as the text and texture, the content and colour of the impugned judgment and award of the Tribunal, and the relevant proposition of law under the Motor Vehicles Act, 1939 applicable at the relevant time.

3.(cid:9)Firstly, it is difficult to resist the temptation of mentioning that the sole ground of challenge, as advanced before us in this Appeal, is conspicuously nonexistent at the time of proceedings before the Tribunal. It is an evident fact that such a plea was not raised by the insurer, the appellant before us, in the written statement, nor it was propounded at the time of leading the evidence to show that the liability of the insurer is limited. Obviously, therefore, there cannot be an issue in absence of pleadings of the party. We are conscious of the proposition that the proceeding before the Tribunal under the Motor Vehicles Act are in the nature of summary proceedings. However, the issues have been framed on the basis of the pleas and disputes raised by the parties, upon which the issues are formulated and cast. There is no such issue. It will also be very interesting to highlight and herald that had the dispute which is now raised for the limited liability been the real plea, in so far as the insurer is concerned, ordinarily, there would not be a common lawyer for the defence of the driver, insured and the insurer for the simple reason that there will be conflict of interests. This may lead to a proposition that there was no such dispute at all before the Tribunal, but we do not propose to divulge on that aspect at this stage.