Judgment:
A.N. Venugopala Gowda, J.
1. Respondents 1 to 3 herein, instituted in the Motor Accident Claims Tribunal, (for short 'tribunal') a claim petition under Section 166 of Motor Vehicle Act 1988, (for short 'Act') on 6.11.2002 to award compensation of Rs. 15,00,000/-. 4th respondent herein was the 1st respondent and the appellant was the 2nd respondent, in the said claim petition. For the sake of convenience, parties would hereafter be referred to with reference to their ranks in the claim petition.
2. Brief facts of the case are: Petitioners are the widow and children of, one Chandrappa S/o. late. Dasegowda of Narayanaghattahalll village in Arsikere Taluk. Said Chandrappa, owned a Motor Vehicle, Maxicab bearing No. KA-18-3125. On 27.8.2002, Chandrappa while travelling in his said vehicle to go Tiptur, on account of the rash and negligent driving by its driver, which resulted in an accident, sustained injuries. Injured Chandrappa was immediately shifted to a hospital for treatment. Two days later, he succumbed to the injuries. Wife and children of deceased, filed claim petition against the driver and insurer of the vehicle.
3. After service of notice, driver remained absent and was placed ex-parte by the Tribunal. Insurance Company filed its objections on 15.9.2003, denying the case of the petitioners. It stated that, deceased was owner of the vehicle; that it had issued art insurance policy to the R.C. holder - Chandrappa; that the policy does not cover the risk of the owner of the vehicle and hence, the petitioners who are the legal heirs of the deceased, will not be entitled to claim from the Insurance Company. It was further stated, the insurance policy Issued, excludes the risk of insured and hence the petition is not maintainable against it.
4. Based on the pleadings of parties, Tribunal framed issues on 29.9.2003. Petitloner-1 deposed as PW1. 11 documents produced were marked as Exs.P1 to P11. Respondents did not lead any evidence. Case was set down on 30.6.2006 for hearing of arguments. Petitioners filed IA-V under Order 6 Rule 17 CPC to amend the claim petition filed, to one under Section 163A of the Act. By overruling the objections of Insurance Company, IA-V was allowed on the ground that, amendment sought, being only a change of provision of law, is formal in nature. On the same day, arguments on main petition was also heard by the learned member of the Tribunal. The petition was partly allowed, awarding compensation of Rs. 50,000/- under Section 140 of the Act, with interest at 6% p.a. from date of petition till payment. The reason assigned for awarding of compensation, reads as follows:
Now I have to decide the quantum of the compensation . It, Is not in doubt that the owner of the vehicle is not made respondent in the case as the deceased himself was the owner, in view of the same gallon of awarding compensation either under Section 166 or 163-A of M.V. Act does not arise. It can never be argued that owner of the vehicle who is a party to the contract is a third party to the insurance contract. In view of the same I have to examine award of compensation under Section 140 of M.V. Act. The law makers have though it fit to introduce such a provision which speaks of no fault liability. The Court is prohibited from examining at whose fault the accident occurred. In view of the same, the statutory compensation as enshrined in the said provision of Section 140 of M.V. Act need to be awarded, be it third party to the contract or party to the contract. As such, I award compensation of Rs. 50,000/- under Section 140 of M.V. Act to the petitioners.
(underlining is by me)
5. Aggrieved, the appellant - Insurance Company has filed this appeal.
6. Heard learned Counsel for the appellant. Respondents despite service of notice, have remained un represented. I have perused the record.
7. Learned Counsel for appellant would contend that:
i) In view of the provisions in Section 147 of the Act, the insurer is not required to cover the risk of insured and in fact has also not covered.
ii) In a claim petition under Section 163A of the Act, no order under Section 140 of the Act can be passed.
iii) In a petition under Section 163A of the Act, as the owner of the vehicle who is liable to pay the compensation himself having died in the accident, no liability would arise on the insurer, as the insured is not liable to pay any compensation.
iv) Impugned Judgment and award are opposed to law, probabilities of the case and the evidence on record.
8. In view of the contentions and the record, the point for consideration is:
Whether, MACT is justified in passing the award against the appellant?
9. Policy issued by the appellant, covers the liability incurred by the Insured, in respect of death or bodily injury to any person carried in the vehicle and damage to any property of a third party caused by arising out of the use of the vehicle. Premium was paid to cover the liability of 12 passengers, third party property damage Rs. 25,000/- and WC to employee. The premium paid was in respect of the aforesaid categories only. The policy does not cover any risk for injury to the owner - insured himself.
10. In the case of Dhanraj v. New India Assurance Co. Ltd. and Anr. ILR 2005 Kar 1217, the facts were that, appellant along with certain other persons was travelling in his own jeep, which met with an accident and as a result, appellant as well as other passengers received injuries and claim petitions were filed. The owner/appellant also filed a claim petition. Tribunal held the driver of jeep responsible for the accident and allowed the claim petitions filed by other passengers directing the owner/insured as well as the driver and the Insurance Company liable to pay the compensation. The claim petition filed by owner/insured was also allowed. Insurance Company filed an appeal. It was held that, as claimant was the owner of the vehicle, Insurance Company is not liable to pay any compensation and accordingly, appeal allowed. Claimant took up the matter before the Hon'ble Supreme Court, wherein, it was held that, the owner of the vehicle can only claim, provided a personal accident insurance had been taken out and since no such insurance had been taken, the judgment passed by this Court in appeal, is free from infirmity and accordingly, the appeal was dismissed.
11. In the case of Oriental Insurance Co. Ltd. v. Smt Jhuma Saha and Ors. : AIR 2007 SC 1054, the facts were that, deceased was an owner of an insured vehicle. While he was driving the said vehicle, an accident took place, he sustained injuries and later succumbed thereto. A claim petition under Section 166 of the Act was filed by legal heirs of the deceased. Petition was resisted by Insurance Company on the ground that, insurance policy is a third party policy and the contract between the insured and the insurer is that, if any accident occurred out of the use of motor vehicle, then only third party is entitled to claim compensation. The insurer and insured are the first and second party and other than them, all others are third party and hence, the claimants are not entitled to get any compensation. Tribunal did not accept the contention of Insurance Company. It inter alia held that, vehicle being insured and an additional premium for death of driver and conductor having been paid, the liability was covered by the insurance policy. Appeal preferred by Insurance Company in the High Court did not find favour. Insurance Company carried the matter to the Apex Court contending that, in view of Section 147 of the Act, the jurisdiction of the tribunal was confined to a third party claimant and thus the impugned judgment cannot be sustained. Considering the said contention, while allowing the appeal and absolving Insurance Company of the liability, it was held as follows:
10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving, the question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.
11. Liability of the insurer-Company is to the extent of indemnification of the insured against the respondent or a injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of Motor Vehicles Act, the question of the insurer being liable to indemnify insured, therefore, does not arise.
12. In Dhanraj v. New India Assurance Co. Ltd. and Anr. : 2004 (8) SCC 553 : 2004 AIR SCW 5438, it is stated as follows;
8. Thus, an Insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.
10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs. 4989 paid under the heading 'Own damage' is for covering liability towards personal injury. Under the heading 'Own damage', the words 'premium on vehicle and non-electrical accessories' appear. It is thus clear that this premium is towards damage to the vehicle and not for Injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance.
13. The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case.
(Emphasis supplied by me)
12. In the Instant case, claim petition though initially was filed under Section 166 of the Act, was subsequently amended, as one filed under Section 163A of the Act. Liability under Section 163A of the Act is on the owner of the vehicle i.e., deceased Chandrappa. In the circumstances petitioners could not have maintained a claim in terms of Section 163A of the Act, against Insurance Company. For the said purpose, only terms of the contract of insurance should be taken recourse to. When the insurance policy issued by the appellant is perused, the liability of the Insurance Company is confined to third party claims, loss to the property of the third party and workman. Beyond the same, the Insurance Company is not liable to cover the risk of any other person. The contract of insurance being governed by the contract qua contract, the tribunal without examining the policy, by totally misdirecting itself, has erroneously passed the award, by invoking Section 140 of the Act, be it a third party to the contract or party to the contract. The appellant did not cover in the policy, the risk of injury to the owner himself and hence the award could not have been passed against the appellant.
In the result, the impugned Judgment and Award passed against the appellant cannot be sustained. The same is hereby set aside. The claim petition against the appellant, shall stand dismissed. No costs.
Registry is directed to refund to the appellant, the amount deposited at the time of filing of this appeal.