CHIMAJIRAO KANHOJIRAO SHIRKE AND ANR. versus ORIENTAL FIRE AND GENERAL INSURANCE CO. LTD.

Citation: [2000] SUPP. 1 S.C.R. 696 · Decided: 26-07-2000 · Supreme Court of India · Bench: AJAY PRAKASH MISRA, RUMA PAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
CHIMAJIRAO KANHOJIRAO SHIRKE AND ANR. 
v. 
ORIENTAL FIRE AND GENERAL INSURANCE CO. LTD. 
JULY 26, 2000 
B 
[A.P. MISRA AND RUMA PAL, JJ.] 
Insurance: 
Motor Insurance Policy-Deceased owner of a truck died in an accident 
C involving his truck-Truck insured with the insurance company for Rs. JO 
Lakhs covering risks for unlimited personal injury and property-Parents of 
the deceased filed a suit/or recovery of Rs. 6,03,000 against the insurance 
company-In its written statement insurance company denied liability on the 
ground of the words unlimited personal injury having been typed by mistake-
D Trial Court decreed the suit-High Court allowed the appeal observing that 
the word unlimited was with respect to the death and injury to the third party 
and insurer only-On appeal, Held : The stand of the insurance company 
before the trial court that the word unlimited got typed by mistake is contrary 
to its plea that it qualifies for the third party only-As the submissions in the 
written statement were in writing, subsequent plea cannot succeed-
£ Respondent had not taken any stand to dissolve its said plea taken in the 
written statement-High Court erred in deciding the issue through legal 
inferences without adverting to the facts on record. 
F 
One M had got his goods truck insured with the respondent company 
for Rs. 10 Lakhs under a comprehensive policy covering risks for unlimited 
personal injury and property. The said truck had also been insured to the 
tune of Rs. 1,27,000 for damage to the property. The said M died in an accident 
while driving the said truck on which the appellants i.e. parents of the deceased 
filed a suit for recovery of Rs. 6,03,000 against the respondent company. In 
its written statement before the trial court, the defendant/respondent ~ompany 
G pleaded that the words unlimited personal injury and property had been typed 
by mistake/oversight. The trial court decreed the suit holding that payment 
of Rs. 134 as additional premium was for unlimited personal injury to the 
life of the insured as well as to the property to the tune of Rs. IO Lakhs. 
Appeal preferred by the respondent insurance company was allowed by the 
High Court. The High Court was of the view that the amount of Rs. 134 had 
H 
696 
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C. K. SHIRKE v. ORIENTAL FIRE AND GENERAL INSURANCE CO. LTD. 697 
been paid for covering the risk in excess of statutory liability in regard to 
third party risks and not the personal injury or death of the insured. Hence 
this appeal. 
The respondent company contended that the words "unlimited personal" 
qualifies unlimited for the death and injury of a third party and would not 
cover the insured person personally. 
Allowing the appeal, the Court 
HELD: 1. The stand taken by the insurance company in its written 
statement that the typing of wording "unlimited personal injury" against the 
additional premium of Rs. 134 is due to oversight/mistake is contrary to the 
submissions made by the Ld. Counsel for the respondent. It has not been the 
case of the insurance company that notwithstanding the word used therein, 
namely, "unlimited personal injury" in terms of the policy it would be limited 
to the liability of the third party. On the contrary, faced with the submission 
that such words would make the insurer liable even to the insured personally, 
the said plea and submissions were made in the trial court. 
(668-G-H; 669-A; 700-E-F) 
2. The High Court committed an error in setting aside the finding given 
by the trial court, specially in view of the said specific plea taken in the written 
statement. The insurance company had not led any evidence to dissolve the 
stand taken in the written statement that it was done by mistake nor there 
was any application to amend such pleadings. In view of this the High Court 
was not correct to decide the issue through legal inferences dehors of and 
without adverting to the glaring facts on the record. (700-F, G, H; 701-A] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1044of1992. 
From the Judgment and Order dated 19.6.89 of the Bombay High Court 
in F.A. No. 284 of 1988. 
S.B. Bhasme, A.S. Bhasme and Manoj Kr. Mishra for the Appellants. 
Jitendra Sharma and Pramanand Gaur for the Respondents. 
The following Judgment of the Court was delivered : 
A 
B 
c 
D 
E 
F 
G 
The short question raised in this appeal is whether the words "unlimied 
personal injury and property damage" upto Rs. IO lakhs for which premium H 
698 
SUPREME COURT RE
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