ORDER
Rajesh Tandon, J.
1. Heard Sri Prabhat Pandey counsel for the appellant and Sri G.S. Negi counsel for the respondents.
2. This is insurer's appeal against the Award dated 28-5-1993, passed by the Motor Accident Claims Tribunal, Pauri Garhwal.
3. The claimants Smt. Chopri Devi & others preferred a claim petition under Section 166 of the Motor Vehicles Act, for the grant of compensation on account of the death of Purna Nand in a motor vehicle accident. According to the claimants on the fateful day on 6-7-1901 the deceased was himself driving his taxi Jeep No. UTS 1540, when the vehicle reached near Dugadda the driver lost control over the vehicle and it fell down into a ditch. The deceased sustained fatal injuries and he succumbed to his Injuries instantaneously.
4. The Insurance company, appellant has admitted the insurance of the vehicle. However, it has been asserted that the accident took place due to own rash and negligent driving by the deceased, therefore, the insurance company is not liable to pay compensation. It has also been stated that the vehicle was not Insured for the owner of the vehicle, therefore, the insurance company has no liability to pay compensation to the heirs of the owner.
5. In order to prove their case, the claimants have examined Smt. Chopadi Devi as P.W. 1 and has also filed copy of post mortem report, copy of F.I.R., driving licence and insurance cover note.
6. On the basis of the evidence adduced by the claimants, the Claims Tribunal has held that the accident had taken place due to mechanical defect in the vehicle. The claimants are the legal representatives and dependents of the deceased Sri Purnan Nand. The vehicle was validly insured with J he appellant insurance company and the insurance company is liable to pay the compensation.
7. So far as the compensation is concerned the Tribunal has recorded the finding that at the time of accident the age, of the deceased was 52 years. The Claims Tribunal held that the deceased was driving the vehicle and was earning Rs. 1000/- per month or Rs. 12.000/- per annum. After deducting 1/3 for the own expenses of the deceased the claims Tribunal has held the annual dependency of the claimant on the income of the deceased to be Rs. 8000/-. Considering the age of the deceased the Tribunal has selected the multiplier of 13 and thus the compensation comes 7200 x 22 = 1,04,000/-. One third amount was deducted, for lump sum payment and thus the claimants were held entitled of Rs. 70000/- as compensation. Rs. 10,000/- was also awarded as lump sum compensation towards pain and sufferings, and loss of consortium. Thus the Claims Tribunal has awarded a total sum of Rs. 80,000/- as compensation.
8. The Claims Tribunal has held that the vehicle was insured for 0 passengers and one driver. If the premium was paid for driver, if the owner was himself driving the vehicle, he shall be termed as driver and insurance company is liable to pay compensation on account of his death in the accident. Thus the insurance company was held liable to pay compensation of Rs. 80,000/-along with pendente lite and future interest @ 12% per annum.
9. Feeling aggrieved, the Oriental Insurance Company has filed the present appeal.
10. Counsel for the appellant has confined his argument on the point that no personal accident insurance was taken out by the owner of the vehicle and Section 147 of the M. V. Act, does not require Insurance company to assume risk for death or bodily injury to owner of the vehicle, therefore, the Claims Tribunal was not justified to direct the insurance company to pay compensation to the heirs of the owner of the vehicle met with accident.
11. Counsel for the appellant has placed reliance on the case Dhanraj v. New India Assurance Co. Ltd. and Anr. (2004) ACC 300 (SC) : AIR 2004 SC 4767 in which the Apex Court has held that Section 147 of M.V. Act does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle. The Apex Court has observed as under:
We have seen the policy. It is a comprehensive policy. The question that arises is whether a comprehensive policy would cover the risk of injury to the owner of the vehicle also. Section 147 of the Motor Vehicles Act, 1988 reads as follows:
147. Requirements of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including 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 in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation.--For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place not withstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to Sub-section (1), a policy of insurance referred to in Sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely-
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy, whichever is earlier.
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.
12. In the present case the claimants have filed original insurance policy, which is paper No. 11-C on the lower Court's record. In the policy extra premium has been paid for legal liability of the driver. Thus proviso of Clause (a)(i) of Sub-section (1) of Section 147 of M.V. Act, does not come to operate in the present case, for denial of the liability of insurance company in respect of the death or bodily injury to a person engaged in driving the vehicle.
13. Now the question arises that whether in the present case the insurance company is liable to pay compensation on account of death of a person who was owner of the vehicle and he himself was driving the vehicle at the time of accident
14. The purpose of the insurance is to indemnify the insured against the third person or in respect of damages to the property. Thus where the insured i.e. an owner of the vehicle has no liability to a third party, the Insurance Company has no liability also. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi and Ors. (1998) II ACC 1931 (SC) : AIR 1998 SC 257, it has been held as under (Para 3 of AIR):
This conclusion, reached by the High Court, is clearly erroneous. The liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. There is, thus, a basic fallacy in the conclusion reached by the High Court on this point.
15. In the present case the compensation has been claimed by the heirs/dependents of the deceased owner of the vehicle in question and the liability to pay compensation to his own heirs cannot be fastened upon the deceased insured. As the liability of the insurance company is to indemnify the insured only, therefore, in the present case insurance company cannot be held liable to pay compensation to the claimants.
16. However, a perusal of the paper No. 11-C (terms and conditions of the insurance policy) on lower Court's record. Clause IMT-71 provides accident cover to the driver, other than a paid driver. It reads as under:
IMT-71 Personal accidents Cover to Driver (other than paid Driver)
It is hereby understood and agreed that the company undertakes to pay compensation on the scale provided for bodily injury/death as hereinafter defined sustained by driver (other than paid driver) of the vehicle in direct connection with the use of Motor Vehicles or whilst amounting, dismounting or driving the vehicle and caused by violent accidental external and visible means which independently of any other cause shall within '12 calendar months of the occurrence of such injury result in:
(a) Death only Rs. 20,000/-
17. Thus in view of the above, although the insured, owner of the vehicle, is not entitled to get compensation for bodily injury or death from the insurance company under Section 147 of the M.V. Act, however under the term IMT-71 aforesaid, the claimants were entitled to get Rs. 20,000/- as compensation on the death of Purnanand owner of the vehicle.
18. In the present case the Claims Tribunal awarded compensation of Rs. 80,000/- along with pendente lite and future interest @ 12% per annum. The judgment and award was granted in the year 1993 i.e. about 14 years back and if the appellant insurance company has made part or full payment of the award, it shall not be recoverable now from the claimants. I fortified this view with the findings of Apex Court in the case of Sunita Rathi AIR 1998 SC 257 (supra).
19. In that case the Apex Court on the point of recovery of the compensation already paid, has held as under:
4. The question now is of the final order to make in the present case. We find that the insurer has made the payment to the claimants in the present case in satisfaction of the entire claim and it has been fairly stated by the insurer that this appeal was filed only for getting a decision on this point pertaining to its liability in such a situation. In the circumstances of the case, we deem it fit to say that the amount already paid by the insurer to the claimants is not required to be refunded by the claimants to the insurer.
20. Thus in view of above, the appeal is partly allowed. The amount of award dated 28-5-1993, passed by the Claims Tribunal is modified to the extent of Rs. 20,000/- with pendente lite and future interest at the rate of 9% per annum. However, the excess amount, if any, already paid by the appellant to the claimants is not required to be refunded.
21. No order as to costs.