Judgment:
S.S. Sodhi, J.
1. The appeal here is by the owner of the offending truck seeking to challenge his liability for the compensation awarded.
2. A drilling machine was being taken from Karnal to Ambala. It went out of order near Stiarif Garh Bridge. Sadhu Ram, who was the driver thereof, parked it on the side and got under it to repair it. It was then that truck PBT-5217 came from the side of Karnal and dashed into this drilling machine as a result of which Sadhu Ram sustained serious injuries and later died. This happened on May 25, 1982, at about 9.30 p.m. It was the finding of the Tribunal that the truck-driver was wholly to blame for this accident. A sum of Rs. 70,000 was awarded as compensation to the widow and children of Sadhu Ram, the deceased. The liability for the payment of the compensation awarded was fastened upon the respondent-insurance Company to the extent of Rs. 50,000 while the balance was held to be payable by the driver and the owner of the truck.
3. The attempt in the first instance was to establish that this was a case of contributory negligence. The contention in this behalf being that the drilling machine had been parked on the metalled portion of the road without any parking light or other indication. A reading, however, of the testimony of P.W.-3, Sardara Ram who was travelling on this drilling machine with Sadhu Ram, the deceased, would show that the machine had been parked on the kacha portion of the road on the left hand side and what is more, both the front and the back lights of this machine were on when Sadhu Ram was repairing it. The light at the back was red. The only witness examined to controvert this was the truck driver, RW 1, Sohan Singh, who deposed that there were four or five vehicles coming from the opposite direction* with their head-lights on and it was on that account that he could not notice whether there was anything lying ahead of his truck and this is what led to his truck striking against the drilling machine. In other words, the truck driver admitted to being blinded by the headlights of the oncoming traffic. In this situation, it was clearly incumbent upon the truck driver to have stopped rather than to have proceeded ahead without knowing whether or not the road was clear. Negligence on the part of the truck driver is thus writ large. This being so, the finding of the Tribunal holding the truck driver to be wholly at fault, clearly warrants no interference in appeal.
4. The main point which arises for determination in this case is with regard to the liability of the respondent-insurance company. In this behalf, it is pertinent to note that no plea had been raised by the insurance company to the effect that its liability was in any manner limited, the plea put forth in the written statement being that the offending vehicle was not insured with it. This stands negatived by the insurance policy which has been placed on record and it is not now suggested that even the truck was not insured.
5. Mr. Hemant Kumar, appearing for the respondent-insurance company, sought to contend that as the policy of insurance had been placed on record by the truck-owner, he must be held to be bound by the terras thereof implying thereby that the liability of the insurance company should be taken to be limited to what is stated therein, regardless of the fact that no plea had been raised by the insurance company in its written statement that its liability was in any manner limited. This is indeed a contention which cannot be sustained keeping in view the well-settled position in law now, namely, that the liability of the insurance company must be held to be unlimited unless a specific plea is taken by the insurance company that its liability is limited and there is the policy of insurance on record to substantiate it.
6. A pertinent feature of the matter here is that even the policy of insurance as has come on record does not disclose any limitation with regard to the liability of the insurance company, inasmuch as it contains no clause stipulating any limitation with regard to the liability of the insurance company. This is thus an added reason for holding the liability of the insurance company to extend to the entire amount awarded.
7. Such being the situation, there can be no escape from the conclusion that the respondent-insurance company must be held to be liable for the entire amount awarded.
8. The award of the Tribunal is modified accordingly and this appeal is hereby accepted with costs. Counsel fee Rs. 500.