(Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 against the Order made in M.C.O.P. No.278 of 2003 dated 31.1.2006 on the file of Motor Accident Claims Tribunal (Principal Sub-Court), Gobichettypalayam.)
COMMON JUDGMENT:
R. BANUMATHI, J.
Civil Miscellaneous Appeal No.1102 of 2007 arises out of the award in M.C.O.P.No.278 of 2003 (31.1.2006) declining to grant compensation for the death of Senthilkumar and awarding only Rs.50,000/- under "No Fault Liability". Being aggrieved by awarding of Rs.50,000/- towards "No Fault Liability", Insurance Company has preferred Civil Miscellaneous Appeal No.1263 of 2007. Both the appeals were heard together and shall stand disposed of by this common judgment.
2. Brief facts are that on 15.09.2002 at 9.30 A.M., deceased Senthilkumar was driving Maruthi car bearing registration No.TN 29-L 1919 from north to south and while nearing Ayakovil Pirivu road, ASTC Depot to Namakkal National Highways Road, Rasipuram, a dog suddenly crossed the road from east to west. In order to avoid to dash the dog, Senthilkumar swerved the car on the right side of the road and lost the control of the car and dashed against the tamarind tree. Due to the impact, the car was damaged and Senthilkumar sustained grievous injuries. Immediately after the accident, Senthilkumar was taken to Suriya Hospital, Rasipuram where from he was taken to United Apollo Hospital, Coimbatore and succumbed to the injuries on 17.09.2002. Inspector of Police, Rasipuram Police Station registered the case in Crime No.833 of 2002 under Section 279, 337 and 304(A) I.P.C. At the time of accident, Senthilkumar was doing business of supply of water under the name and style M/s.Raghavendra Water Suppliers in Hosur Town and was earning Rs.50,000/- per month. Stating that the family lost the support due to the accident and that the Maruthi car was insured with the Respondent-Insurance Company, Claimants have filed Claim Petition claiming compensation of Rs.20,00,000/-.
3. Respondent-Insurance Company filed the counter stating that policy only covers third party risk and any damage caused to the vehicle and that Insurance Company is not liable to pay compensation for the death of the insured. It is further averred that as per the contract, liability of Insurance Company is only with regard to third party and therefore, the Insurance Company is not liable to pay compensation to the Claimants.
4. Before the Tribunal, 3rd Claimant-Mohana examined herself as P.W.1. Eye-witness (Palanisamy) was examined as P.W.2. Adjacent shop owner (Radhakrishnan) was examined as P.W.3. Exs.A1 to A20 were marked. On the side of Insurance Company, the then Assistant Manager of Bajaj Allianz General Insurance Company, Coimbatore viz., Saju Chandradasan was examined as R.W.1. Exs.B1 and B2 were marked.
5. Upon consideration of oral and documentary evidence, Tribunal held that accident was due to negligent driving of the deceased Senthilkumar himself. Tribunal held that the car bearing registration No.TN-29 L 1919 was registered with the Respondent-Insurance Company and that Exs.B2-policy covers only third party risk and also damages caused to the car. Referring to the evidence of R.W.1, Tribunal held that no extra premium was paid for "personal accident coverage for owner" and therefore, Insurance Company is not liable to pay compensation for the death of insured. On those findings, Tribunal directed the Insurance Company to pay only Rs.50,000/- towards "No Fault Liability".
6. We have heard Mr.S.Parthasarathy, learned counsel for Claimants and Mr.K.S.Narasimhan, learned counsel for Insurance Company.
7. The points falling for consideration in these appeals are:-
1) Whether Insurance Company is liable to pay compensation for the death of owner-cum-driver?
2) Whether the Insurance Company is right in contending that Ex.B2-policy does not cover personal accident to the insurer/owner.
8. Deceased Senthilkumar was driving his own Maruthi car bearing registration No.TN 29-L 1919. It is stated that since the dog suddenly crossed the road from east to west, car swerved to the right side of the road and lost the control and dashed against the tamarind tree on the western side of north-south National Highways road and that deceased Senthilkumar met with an accident and sustained fatal injuries.
9. Case of Insurance Company is that owner himself drove the vehicle and that the accident was due to negligence of the owner-cum-driver and therefore, they are not bound to pay separate compensation to the legal heirs of Senthilkumar. In his evidence, RW1 stated that separate premium was not paid for "personal accident coverage" and Ex.B2 is "Act only" policy. Insurance Company refutes the Claim on the ground that no additional premium was paid to cover personal injuries to the owner-cum-driver. R.W.1 further stated that since Senthilkumar did not have valid driving licence, compensation for damage to the vehicle was also not paid.
10. Drawing our attention to Ex.B2 and the clause in Ex.B2-policy, Mr.S.Parthasarathy, learned counsel for Claimants submitted that as per the policy condition, in case of death or injury to owner, Insurance Company has to pay compensation of Rs.5,00,000/- and that the Tribunal did not properly appreciate the terms of the policy. Learned counsel for Claimants further submitted that accident occurred only since street dog came infront of the vehicle and in order to avoid the same, Senthilkumar swerved the car and the vehicle hit the tree and while so, without properly appreciating the same, Tribunal erred in holding that the accident occurred only due to the negligence of the deceased. It was contended that Tribunal erred in arriving at the conclusion that policy does not cover personal liability. In support of his contention, learned counsel placed reliance upon AIR 2008 Supreme Court 490 (New India Assurance Co. Ltd. v. Kendra Devi and others).
11. Mr.K.S.Narasimhan, learned counsel appearing for Insurance Company contended that owner-cum-driver cannot seek any compensation from his insurer for any act of tort committed by him and the legal representatives cannot claim compensation for the death of owner-cum-driver and that Tribunal erred in awarding compensation of Rs.50,000/- to the Claimants. In support of his contention, learned counsel placed reliance upon 1982 ACJ (Supp.) 118 [M/s.Rajeswari Transport (Firm), Theni v. M.G.Rajan and others] and 1988 ACJ 270 [National Insurance Co. Ltd. v. Jugal Kishore and others].
12. Ex.B2 is the Policy of Maruthi Car bearing registration No.TN-29 L 1919 involved in the accident for the period from 22.03.2002 to 21.03.2003 and it is a "comprehensive policy". As per Ex.B2-Policy, net premium of Rs.6,820/- along with service tax of Rs.342/-, final premium of Rs.7,162/- was paid. The split up figure for the total premium of Rs.7,162/- paid is as follows:-
Net Premium                          ...      Rs.6820.00
Service Tax (Inclu Edu.Cess)     ...      Rs. 342.00
Final Premium                        ...      Rs.7162.00
Ex.B2-Policy contain the following:-
"The Company agrees to pay an amount of Rs.5 Lacs for owner and Rs.1 Lac for each unnamed occupant including driver (maximum of 4 (FOUR) persons of registered seating capacity of the vehicle whichever is less) for Death only, occurring within 12 months of bodily injury sustained directly arising out of accident to the insured vehicle during the period of insurance concurrent with the period of this motor policy. The owner shall be covered for an additional amount of Rs.10 Lacs if death results from injury sustained whilst travelling in a scheduled commercial .......
13. As pointed out earlier, as per Ex.B2-Comprehensive Policy, premium of Rs.6429.81 was paid towards own damage. Apart from own damage, Rs.340/- towards basic TP; and Rs.50/- towards TPPD Extension were also paid. Adding service tax for the selected period i.e. Rs.342/-, total premium of Rs.7162/- was paid. Admittedly, as per the provisions contained in Section 147 of the Act, there is no requirement on the part of the insurer to cover the risks of owner and the occupants of the car.
14. The legal heirs of the owner of the vehicle (deceased Senthilkumar) are entitled for compensation only under the head "personal accident coverage" provided premium has been paid under the said heading. In the instant case, no premium is paid for "personal accident coverage". However, the above clause related to the "personal accident coverage" was omitted to score out by the Insurance Company. Hence, taking advantage of the same, Claimants cannot claim that legal heirs of the deceased/owner of the vehicle are entitled for compensation.
15. Any policy in terms of Section 147 of Motor Vehicles Act covers the liability incurred by the insured in respect of death 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. Section 147 of the Act does not require an Insurance Company to assume the risk for the death or bodily injury to any person including the occupants carried in the motor car.
16. As per India Motor Tariff (IMT) Endorsements, for "personal accident coverage" to the insured or any named person other than paid driver or cleaner, additional premium is to be paid. The relevant IMT 15 reads as under:-
"IMT. 15. PERSONAL ACCIDENT COVER TO THE INSURED OR ANY NAMED PERSON OTHER THAN PAID DRIVER OR CLEANER (Applicable to private cars including three wheelers rated as private cars and motorized two wheelers with or without side car [not for hire or reward]) In consideration of the payment of an additional premium it is hereby agreed and understood that the Company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by the insured person in direct connection with the vehicle insured or whilst mounting and dismounting from or traveling in vehicle insured and caused by violent accidental external and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in:
| Details of Injury | Scale of Compensation |
| i) Death | 100% |
| ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye | 100% |
| iii) Loss of one limb or sight of one eye | 50% |
| iv) Permanent Total Disablement from injuries other than named above | 100% |
(1)compensation shall be payable under only one of the items (i) to (iv) above in respect of any such person arising out of any one occurrence and total liability of the insurer shall not in the aggregate exceed the sum of Rs. ............* during any one period of insurance in respect of any such person.
(2)no compensation shall be payable in respect of death or injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
(3)Such compensation shall be payable only with the approval of the insured named in the policy and directly to the injured person or his/her legal representative(s) whose receipt shall be a full discharge in respect of the injury of such person.
Subject otherwise to the terms exceptions conditions and limitations of this policy.
* The Capital Sum Insured (CSI) per passenger is to be inserted."
17. By careful perusal of Ex.B2-Policy, it is seen that no such additional premium was paid covering death or bodily injury of owner-cum-driver. As per IMT. 15 only if additional premium was paid, as per the printed clause in Ex.B2, the insurer is liable to pay compensation. Without paying such an additional premium, Claimants cannot invoke the clause printed in Ex.B2-Policy.
18. In DHANRAJ VS. NEW INDIA ASSURANCE CO.LTD. AND ANOTHER, (2004) 8 SCC 553 = 2004 (2) TN MAC 144 (SC) = (2004(4) CTC 716(SC) = 2005 ACJ 1), the Supreme Court held as under:
“9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi (1998 ACJ 121) it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to 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.
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."
19. In ORIENTAL INSURANCE CO.LTD. VS. JHUMA SAHA AND OTHERS, 2007 (2) TN MAC 56 (SC) = 2007 ACJ 818, the fact of the case was that the deceased was the owner of the vehicle, a Maruthi van. While he was driving the said vehicle, it dashed with a tree and the owner of the vehicle succumbed to the injuries. A claim petition was filed by the legal representatives of the deceased for compensation. The Insurance Company contested the claim and denied its liability on the ground that no additional premium was paid covering the risk of the owner of the vehicle. The Supreme Court held as under:
“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.
Hence in the facts of the case, it can safely be couched that the Appellant-Insurance Company has no liability to pay the compensation.
20. In S.DHANAPAL VS. A.JEROME AND OTHERS, 2007(1) TN MAC 165 = 2008 ACJ 2480, it was held as under:
“17. The argument that the insured owner of a motor cycle involved in a motor accident can also claim to be a third party must, therefore, be rejected on first principles alone. The view expressed by the learned Single Jduge in New India Assurance Co.Ltd. v. Kaliathal and others, 2002 ACJ 1035 was confirmed by a Division Bench of this Court in Kaliathal and others v. New India Assurance Co.Ltd. And another, 2004 ACJ 51 in which this Court has held as follows:
“3. A Division Bench of this Court in L.P.A.No.187 of 1999, decided on 26.07.2000, has held that the main purpose of the policy is to indemnify the insured against loss or damage arising out of the use of the motor vehicle owned by the insured; that the policies issued for motor vehicles are not the same as policies of life insurance and that the policy is meant to cover the liabilities arising out of the use of the motor vehicles insofar as the liabilities of the owner are concerned and the owner cannot claim to be treated as third party by becoming a passenger of his own vehicle.”
21. Referring to the above judgments, and holding that when no additional premium was paid to cover owner's risk, insurer cannot be held liable, in UNITED INDIA INSURANCE COMPANY LIMITED VS. P.SHANTHI @ P.SANTHAMANI AND OTHERS (2011(1) TN MAC 227 (DB) the Division Bench of this Court held as under:
“7. From the above said decisions, the following points emerge:
1. When additional premium was not paid towards bodily injury to the person or death of the owner, the Insurance Company could not be held liable to pay compensation.
2. Neither owner nor his Legal Representatives, in case of his death, could claim compensation from the Insurance Company on a contention that the owner is a third party.
3. Since the insured is indemnified by the Insurance Company for the compensation payable to third parties, there is no scope for the direction to the Insurance Company in the case of bodily injury or death, to the owner, in the absence of payment of additional premium for the said purpose.”
22. By careful analysis of Ex.B2-Policy, since premium was paid only for "Own Damage" and "Basic TP with TPPD Extension", the printed clause in Ex.B2-Policy cannot be invoked so as to make the Insurance Company liable to pay compensation to the tune of Rs.5,00,000/-.
23. Comprehensive Policy Liability of Insurance Company could be statutory or contractual:- The statutory liability cannot be more than what is required under the Statue itself. Section 147 of Motor Vehicles Act covers the liability incurred by the insured in respect of death 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. As per Section 147 (2) (b) of M.V. Act, the liability of the Insurance Company in respect of damage to any property of a third party limit is Rs.6,000/-.
24. The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the Statute itself. However, there is nothing in Section 147 of M.V. Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risks. In such an event, the insurer is bound by the terms of the contract as specified in the insurance policy in regard to unlimited or higher liability as the case may be. In the absence of such premium or clause in the insurance policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the Statute or the contract of insurance, which is not permissible.
25. Elaborating upon the "comprehensive policy", in 1988 ACJ 270 (National Insurance Co. Ltd. v. Jugal Kishore and others), the Supreme Court held as under:-
"6. .... Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub-section (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. Likewise, if risk of any other nature, for instance, with regard to the driver or passengers etc. in excess of statutory liability, if any, is sought to be covered it has to be clearly specified in the policy and separate premium paid therefor. This is the requirement of the Tariff Regulations framed for the purpose. ...."
26. Under "Act only" policy, the liability to third party alone is unlimited. Under the "comprehensive insurance policy' the owner can claim reimbursement of entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations. So far as occupants of the vehicle are concerned, separate premium has to be paid on the amount of liability undertaken by the Insurance Company. So far as the owner of the car is concerned, there is no provision to pay premium for paying compensation to him in case he met with an accident on his own negligence.
27. As pointed out earlier, as per Section 147(2)(b) of M.V. Act, a statutory liability fixed in respect of damage to vehicle by any third party is Rs.6,000/-. But under Ex.B2-Comprehensive Policy, for any damage, the insured deceased Senthilkumar had paid premium of Rs.6429.81. As per the terms of the contract, the damage to a third party property is not restricted to statutory liability of Rs.6000/-, but is unlimited. The same is evident from the following in Ex.B2-Policy:-
SCHEDULE OF PREMIUM
| Own Damage | Liability |
| Total Own Damage Premium:    | Total Liability Premium:Total PremiumSpecial Discount                        0.00Net Premium                       6820.00Service Tax (Incl Edu.Cess)       342.00 Final Premium                 Rs.7162.00 |
Comprehensive insurance of the vehicle and payment of higher premium for own damage means that limited liability with regard to "damage to third party property". To put it in other words, "damage to third party property" is not restricted to statutory liability fixed under sub-section (2) (b) of Section 147 of Motor Vehicles Act. When the policy is only in respect of "damage to third party property", the same cannot be expanded to cover the death or bodily injury of the owner of the vehicle and that the appeal - C.M.A.No.1102 of 2007 preferred by the Claimants is liable to be dismissed.
28. No Fault Liability Tribunal has awarded compensation of Rs.50,000/- under "No Fault Liability". Challenging the award of compensation of Rs.50,000/- for "No Fault Liability", Insurance Company has preferred C.M.A.No.1263 of 2007.
29. Mr.K.S.Narasimhan, learned counsel for Insurance Company contended that when the Tribunal held that cause for accident was the negligence of the deceased Senthilkumar himself, Tribunal ought not to have awarded compensation for "No Fault Liability" under Section 140 of M.V. Act. Contending that Section 140 of the Act is founded on the "fault liability principle", the learned counsel placed reliance upon 2012 ACJ 1441 (Oriental Insurance Co. Ltd. v. Joseph and others), particularly Paragraph No.9, wherein the Kerala High Court has referred to the judgment of the Hon'ble Supreme Court in 2008 ACJ 1441 (SC) [Oriental Insurance Co. Ltd. v. Rajni Devi].
30. Tribunal has concluded that the accident was due to negligence of the deceased Senthilkumar himself. When the accident was due to negligence of the deceased Senthilkumar himself, legal heirs of the deceased could not have maintained the Claim in terms of Section 140 of Motor Vehicles Act. However, in the facts and circumstances of the case and keeping in view that the 3rd Claimant has lost her husband at the age of 21 years and Claimants 4 and 5 have lost the love and affection of their father at the very young age, we are not inclined to interfere with the quantum of compensation of Rs.50,000/- awarded by the Tribunal under Section 140 of Motor Vehicles Act. Therefore, the appeal C.M.A.No.1263 of 2007 preferred by the Insurance Company is liable to be dismissed.
31. In the result, the award passed by the Tribunal in M.C.O.P.No.278 of 2003 (31.01.2006) on the file of Principal Sub Court, Gobichettipalayam is confirmed and both the appeals are dismissed. Consequently, connected Miscellaneous Petitions are closed. However, there is no order as to costs in these appeals.