Chattisgarh High Court
National Insurance Company Limited vs Chandrika Prasad Devangan 2 Smt Sumitra ... on 12 August, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
Misc Appeal C No 384 of 2008
National Insurance Company Limited
...Petitioners
Versus
1 Chandrika Prasad Devangan 2 Smt Sumitra Bai
...Respondents
! Shri BN Nande counsel for the appellant
^ Shri Praveen Kumar Dhurandhar counsel for respondent
CORAM: HONBLE SHRI RANGNATH CHANDRAKAR J
Dated: 12/08/2010
: Judgement
ORDER
(Passed on 12-8-2010) Appeal under Section 173 of the Motor Vehicle Act 1988
1. By this appeal, the appellant/National Insurance Company Ltd., has challenged the validity of the impugned award dated 10-12-2007, passed by VIII Additional Motor Accident Claims Tribunal (for short, "the Tribunal"), Durg, in Claim Case No. 53 of 2007 awarding compensation to the tune of Rs.1,00,000/- along with interest @ 6% per annum in favour of the claimants/respondents on account of death of Dal Singh, who was son of the respondents, in a motor vehicle accident and against the appellant/Insurance Company.
2. The facts of the case, in brief, are that the first respondent was owner of a motor cycle bearing No. CG -07-LG 1074. He got the said vehicle insured with the appellant/Insurance Company. On 29-1-2007 Dal Singh, son of the insured, while driving the motor cycle met with an accident as a result of which he sustained serious injuries. He was admitted in Sector- 9, Bhilai and died on 2-2-2007. Respondents herein filed a claim petition under Section 163-A of the Motor Vehicles Act, 1988 (for short, "the Act, 1988") whereby the Tribunal dismissing the petition under Section 163-A of the Act, 1988 as not maintainable, has awarded Rs.1,00,000/- under Section 147(5) of the Act to the claimants. Being aggrieved by the said decision, the appellant/Insurance Company has preferred the present appeal.
3. Learned counsel appearing for the appellant submits that no liability would be fastened upon the appellant as deceased Dal Singh was not third party and therefore, the claim petition filed under Section 163-A of the Act, 1988 against the appellant/Insurance Company was not maintainable and in view of the Insurance Policy, insurer is not liable to pay compensation as owner of the vehicle was not driving the motor cycle at the time of alleged accident. Thus, the policy does not cover any liability for any injury to other than owner. It has been further submitted that no premium was taken for covering the risk to any third party other than the owner of the motor cycle. Learned counsel further submits that the Tribunal has erred in appreciating the facts and holding the Insurer liable for compensation to the claimants on the ground that policy covers for the same. It is noteworthy that pursuant to the Insurance Policy, owner- cum-driver is only entitled for accidental claim and none else. The premium was taken to that extent only and no stranger or third party comes within the ambit of owner-cum- driver. The statement of the respondent in this regard has been completely over looked and terms and conditions of the policy cover note Ex.D/1 has been misconstrued. The provisions of Section 147(5) of the Act. 1988 have been applied ignoring the fact that the motor cycle was being driven by the deceased who is not the owner. The Tribunal ought to have held that the premium whatever was taken by the insurer that was taken for the owner-cum-driver and not for anyone else.
4. Per contra, learned counsel appearing for the respondents supporting the award of the Tribunal submits that Section 147 of the Act, 1988 provides that the policy of insurance would also cover cases against any liability which may be incurred by the insurer in respect of death or fatal injury to any person including owner of the vehicle or his authorized representative carried in the vehicle or arising out of the use of vehicle in the public place. He further submits that since the deceased in the present case is not a third party, therefore, the award of the tribunal does not call for any interference.
5. I have heard learned counsel for the parties and perused the award of the tribunal.
6. Appellant raised contention that keeping in view the relationship between the deceased and owner of the motor vehicle i.e., father and son, he was not a third party.
7. From the pleadings of the parties, following issues were framed.
i) Whether applicants' son Dal Singh died on account of an accident occurred with Motor Cycle bearing No CG.07 L.G. /107 on 29-1-2007:
ii) Whether the appellants are entitled to get to the tune of Rs.36,00,000/- from non-applicant as compensation;
iii) Whether applicants' claim under Section 163 (A) of the Motor Vehicles Act, is not maintainable and
iv) Relief and Cost.
8. The Tribunal after deciding the above issues has held that the claim petition filed by the respondents herein under Section 163-A of the Act, 1988 was not maintainable.
In the light of arguments of both the parties, the question which arises for consideration in the present appeal is whether the insurer can claim that the policy of the Insurance Company issued in terms of Section 147(5) of the Act, would not require to cover the risk to the life of the deceased?
9. Section 147(5) of Act, 1988 reads as under:
"(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
10. In the light of the above, I have perused the Insurance Policy (Ex.D/1) wherein it has been mentioned that the respondent/applicant Chandrika Prasad Devangan insured his motor cycle with appellant bearing policy No.320900/31/06/6200004802 for the period from 19-1-2007 to 18-1-2008. It has also been specifically mentioned that compulsory P.A. to owner -cum-driver Rs. 50/- has been paid. On perusal of the award of the tribunal, it is clear that issues Nos. 1 to 3 framed by the tribunal were decided and the Tribunal finally held that the claim of the applicants/ respondents herein filed under Section 163-A of the Act,1988 was not maintainable and question involved in the instant case is whether the Tribunal has awarded the relief and cost under Section 147(5) of the Act.
11. Learned counsel appearing for the appellant in support of his submissions has relied upon a decision in the matter of New India Assurance Company Ltd., Vs. Sadanand Mukhi and others, reported in 2009 (1) T.A.C. 425 (SC) wherein Hon'ble the Supreme Court has held as under: "
"13. The provisions of the Act, therefore, provide for two types of insurance - one statutory in nature and the other contractual in nature. Whereas the insurance company is bound to compensate the owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case involving owner of the vehicle or others are proposed to be covered, an additional premium is required to be paid for covering their life and property.
14. It is not a case where even Section 163-A of the Act was resorted to. The respondents filed an application under Section 166 of the Act. Only an Act policy was taken in respect of the motor vehicle. Submission of the learned counsel that being a two-wheeler, the vehicle was more prone to accident and, therefore, whosoever becomes victim of an accident arising out of the use thereof would come within the purview of the term "a person" as provided for in Section 147 of the Act, in our opinion, is not correct.
16. Only because driving of a motor vehicle may cause accident involving loss of life and property not only of a third party but also the owner of the vehicle and the insured vehicle itself, different provisions have been made in the Insurance Act as also the Act laying down different types of insurance policies. The amount of premium required to be paid for each of the policy is governed by the Insurance Act. A statutory regulatory authority fixes the norms and the guidelines".
12. Even though the Tribunal held that the claim petition under Section 163-A of the Act is not maintainable, but awarded Rs. 1,00,000/- under Section 147(5) the Act 1988 to the claimants. In the considered opinion of this Court, the Tribunal was not justified in awarding Rs. 1,00,000/- to the claimants under Section 147(5) of the Act, 1988 and the insurance policy has not been considered in right perspective.
13. Having considered all the facts and circumstances of the case, material available on record and in view of the above quoted dicta of the Apex Court in the case of New India Assurance Company Ltd. Vs. Sadanand Mukhi (supra), I am of the considered opinion that the Insurance Company was not liable and the appeal preferred by the Insurance Company deserves to be allowed.
14. Accordingly, the award dated 10-12-2007, passed by VIII Additional Motor Accident Claims Tribunal is set aside. The appeal is allowed.
15. No order as to costs.
JUDGE