Madhya Pradesh High Court
Hdfc Ergo General Insruance Co. Ltd Thr vs Natthaaram on 9 May, 2018
1 C.R.No.28/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
:SINGLE BENCH:
{HON'BLE SHRI JUSTICE ANAND PATHAK}
CIVIL REVISION NO.28/2017
HDFC Ergo General Insurance Co. Ltd.
Vs.
Nattharam
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Shri B.K. Agrawal, learned counsel for the petitioner.
None for the respondent though served.
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Whether approved for reporting : Yes
Law laid down:
1- Sections 165 and 166 of the Motor Vehicles Act, 1988
confine bodily injury to persons arising out of the use of motor
vehicles or damages to any property of a third party so arising or
both. Legislative intent is clear and categorical in terms of
compensation to be given.
2- Insurance is a contract between insurer (Insurance Company)
and the insured (owner of the vehicle). Since these two are parties
to the contract, thus third party would obviously be other person.
3- On a proper scrutiny of Section 166 of the Act with
juxtaposition to Section 165 of the Act, it appears that sub-section
(1)(b) of Section 166 of the Act refers to owner of the property
and in the context of both the provisions, it would mean third party
and not insured.
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ORDER
(Passed on 09-05-2018) The present civil revision under Section 115 of the Code of Civil Procedure, 1908, has been preferred by the petitioner 2 C.R.No.28/2017
-Insurance Company against the order dated 17-06-2016 passed by the Second Additional Motor Accident Claims Tribunal, Dabra District Gwalior in claim No.01/2014 whereby the application preferred by the petitioner under Section 169 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') read with Section 151 of CPC, has been dismissed. Through the said application, petitioner Insurance Company wanted to convey the legal position that since the claimant does not come under third party as contemplated under Section 165 of the Act, therefore, he cannot seek compensation and claim application is not maintainable.
2- Precisely stated facts of the case are that the respondent Nattharam preferred a claim application under the provisions of the Act for realization of amount of compensation to the tune of Rs.3,91,000/- for the damage caused to his tractor bearing No.MP07 AA 4059 (insured tractor) which was allegedly damaged in a road traffic accident occurred on dated 13-01-2012 involving another vehicle bearing registration No.DL-1 BB 3375. On the said date, the tractor referred above (MP07 AA 4059) was insured with the petitioner insurance company and the vehicle bearing registration No. DL-1 BB 3375 was insured with Reliance General Insurance Company.
3- Earlier the respondent lodged the "own damage claim"
against the petitioner Insurance Company in respect of alleged damage caused to the above insured tractor. The same was repudiated by the petitioner Insurance Company as not maintainable. In view of the repudiation of the claim, application under Section 166 of the Act was preferred by claimant. In response to the same application under Section 169 of the Act was filed by Insurance Company and it was submitted that the claim application for realizing the amount of compensation from the petitioner company was not tenable since the Claims Tribunal had no jurisdiction to entertain the claim pertaining to damage caused to the insured tractor of the respondent in view of the provisions contained under Section 165 of the Act and in view of the several legal pronouncements in this regard. Learned Judge of 3 C.R.No.28/2017 the MACT rejected the said application. Therefore, the instant revision has been preferred.
4- According to learned counsel for the petitioner, learned Judge of the MACT erred in passing the impugned order and rejecting the application because no claim application can be preferred by the claimant respondent because he is not third party as contemplated under Section 165 of the Act and as decided by this Court in the case of National Insurance Company Ltd. Vs. Santosh Kumar , 2001 ACJ 449 as well as, as per the order dated 08-07-2016 passed in Civil Revision No.13/2015 (Magma HDI General Insurance Company Ltd. Vs. Veera Singh). 5- None for the respondent appeared though served and represented by his counsel, therefore, the matter is heard and decided on the basis of submission of learned counsel for the petitioner and record of the case.
6- It appears from the fact situation that the respondent/claimant filed an application under Section 166 of the Act, seeking compensation for the damage caused to his tractor on the accident referred above. Section 166 of the act reads as under:
166. Application for compensation - (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--
a. By the person who has sustained the injury; or b. By the owner of the property; or c. Where death has resulted from the accident, by all or any of the legal representatives of the deceased; or d. By any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal 4 C.R.No.28/2017 representatives who have not so joined, shall be imp leaded as respondents to the application.
(2) Every application under sub-section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed:
Provided that where any claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident:
Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.
(4) Where a police officer has filed a copy of the report regarding an accident to a Claims Tribunal under this Act, the Claims Tribunal may, if it thinks necessary so to do, treat the report as if it were an application for compensation under this Act."
Similarly Section 165 of the Act is reproduced as under:
"165. Claims Tribunals. (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.
Explanation.-For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 and section 163A. (2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or 5 C.R.No.28/2017 more members, one of them shall be appointed as the Chairman thereof.
(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he-
(a) is, or has been, a Judge of a High
Court, or
(b) is, or has been a District Judge, or
(c) is qualified for appointment as a
High Court Judge or as a District
Judge.
(4) Where two or more Claims Tribunals are
constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them."
7- On a proper scrutiny of Section 166 of the Act with juxtaposition to Section 165 of the Act, it appears that sub section 1(b) of Section 166 of the Act refers to owner of the property and in the context of both the provisions, it would mean the Third Party and not Insured. Said aspect has been dealt with by the Coordinate Bench of this Court in the case of National Insurance Company Ltd. (supra).
8- Third party has not been defined under the provisions of the Act. Insurance is a contract between insurer (insurance company) and the insured (owner of the vehicle). Since these two are parties to the contract, thus third party would obviously be 'Other Person'. Driver and other person employed in the vehicle are also third party and third party would not confine to a person other than occupant of the vehicle.
9- Since Section 165 of the Act confines bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. Meaning thereby that legislative intent is clear and categorical in terms of compensation to be given. In fact award by Tribunal cannot be seen adversarial adjudication between litigating parties to a dispute but a statutory determination of compensation on the occurrence of accident, after due enquiry. Therefore, the question of third party assumes importance.
10- The Hon'ble Apex Court in the matter of National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, 2007 (2) TAC 398 6 C.R.No.28/2017 (SC) has held as under:
"At this juncture, it would be necessary to test the logic behind Section 149 of the Act. The conditions under the said provision relate only to third party risks and claims.
In the background of the statutory provisions, one thing is crystal clear i.e. the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake license has to be considered differently in respect of third party and in respect of own damage claims."
Division Bench of Kerala High Court also in the case of General Manager, Kerala State Road Transport Vs. K.P. Saradamma, AIR 1989 Kerala 23 enunciated the law in the same fashion. Therefore, it is clear that benefits of beneficial legislation having trappings of social healing on the basis of motor vehicle accident occurred, are not available to owner of the vehicle but to third party. Thus, in the present case, owner Nattharam cannot seek compensation because of accident of his own tractor by him. 11- Considering the fact situation, the Claims Tribunal erred in passing the impugned order, rejecting the application of the petitioner. Trial Court did not exercise the jurisdiction vested in it. Consequently, the petition preferred by the petitioner is hereby allowed and the impugned order dated 17-06-2016 is hereby set aside and the application under Section 169 of the Act read with Section 151 of CPC is allowed, consequent to which, claim petition preferred by the petitioner is hereby dismissed as not maintainable.
Petition stands allowed.
(Anand Pathak)
Anil* Judge
Digitally signed by ANIL
KUMAR CHAURASIYA
Date: 2018.05.16 13:22:27
+05'30'