HEMLATA SAHU v. RAMADHAR — 1999 DIGILAW 240 (MP)

A. K. MATHUR, C. J. ( 1 ) ALL the aforesaid three appeals arising out of the same accident, therefore, they are disposed of by this common order. ( 2 ) ON 17. 6. 1991 the deceased Tularam sahu, husband of claimant, Hemlata Sahu, who was driving a scooter, was going from Arang to his village Sundi. The non-claimant Ramadhar, who was on a cycle, met with an accident with the scooter as a result of which, the scooterist Tularam fell on the ground and received injuries. He was immediately taken to Primary Health centre, Arang and thereafter he was shifted to D. K. Hospital, Raipur. It is alleged that during treatment he died. Therefore, a claim petition was filed by his wife, son and daughter claiming compensation to the tune of Rs. 5,02,000. ( 3 ) THE non-claimant Ramadhar has remained ex parte. The scooter was insured with the insurance company and the insurance company contested the claim that the scooter was insured for third party; therefore, the deceased, who died in the said accident, being the owner of the scooter, was not insured by the insurance company. As per the policy of the insurance company, the deceased scooterist was not liable to be compensated by the insurance company. ( 4 ) THE Claims Tribunal on the basis of the evidence, framed six issues. The learned Claims Tribunal found that the claimants were the heirs of the deceased. The learned Claims Tribunal held that the accident took place on account of negligence of the non-claimant Ramadhar as a result of which the deceased died. The learned Claims Tribunal further found that the scooter was insured with the insurance company and held that since it was comprehensively insured, therefore, the insurance company is liable to compensate the heirs of the deceased. The learned Claims tribunal also found that the age of the deceased was 28 years and he was getting a salary of Rs. 1,754 per month; therefore, the annual income of the deceased was rs. 21,048 and after deducting 1/3rd of the monthly income towards his personal expenses, the Tribunal applied a multiplier of 14 and worked out the compensation to the tune of Rs. 1,96,448 and Rs. 10,000 was awarded for loss of consortium. Thus, a total sum of Rs. 2,06,448 was awarded with interest at the rate of 12 per cent per annum. 21,048 and after deducting 1/3rd of the monthly income towards his personal expenses, the Tribunal applied a multiplier of 14 and worked out the compensation to the tune of Rs. 1,96,448 and Rs. 10,000 was awarded for loss of consortium. Thus, a total sum of Rs. 2,06,448 was awarded with interest at the rate of 12 per cent per annum. ( 5 ) AGGRIEVED against the award dated 23. 4. 1998, the insurance company filed an appeal (M. A. No. 774 of 1998 ). The contention of the insurance company was that the scooter was insured qua third party and the appellant did not insure the owner of scooter; therefore, the insurance company is not under any obligation to compensate the heirs of the deceased. The insurance company also filed an appeal (M. A. No. 58 of 1998) whereby it has also challenged the award dated 29. 8. 1997 passed by the learned Claims Tribunal awarding a sum of Rs. 25,000 towards no fault liability under section 140 of the Motor Vehicles act, 1988, on the same grounds that since the scooter in question was insured qua third party; therefore, the insurance company is not liable to compensate the owner of the scooter. ( 6 ) MISC. Appeal No. 814 of 1998 has been filed by the claimants for enhancement of the compensation. Hence, all the aforesaid appeals are tagged together for disposal. ( 7 ) THE first and foremost question is whether the claimants of the deceased are entitled to be compensated or not. ( 8 ) MR. Ruprah, learned counsel for the insurance company, has urged before us that the insurance policy only covers risk in respect of death of or bodily injury or damage to any property of a third party and not the insured himself. The learned counsel has specifically invited our attention to section 147 of the Motor Vehicles act, 1988, and submitted that the term of policy is that it ensures the person or classes of persons specified in the policy to the extent specified in sub-section (2) ; against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Therefore, the learned counsel submits that as per section 147 of the motor Vehicles Act, what is insured is third party and not the insured himself. The submission of the learned counsel appears to be justified. The basis of insurance is that if any liability arises then the insurance company shall be liable to indemnify the third party on behalf of the insured. But, in case when the insured himself meets with an accident and dies then that risk is not covered by the insurance policy. ( 9 ) THE learned counsel has also invited our attention to section 149 of the Motor vehicles Act, which says that the insurer is only to satisfy the award against the vehicle insured in respect of third party risk. The learned counsel submits that by reading of both sections 147 and 149, it is more than clear that the liability of insurance company is to compensate the insured towards the risk of third party and to satisfy the judgment and award passed against the insured. The submission of the learned counsel appears to be justified. ( 10 ) THE Claims Tribunal has laboured under the impression that since it is a comprehensive policy, therefore, the claimants can be compensated on account of death of the insured. This view taken by the learned Claims Tribunal is erroneous and against the decision of the Apex Court. Suffice it to say that Apex Court in the case of National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC), categorically laid down that a comprehensive policy means it covers third party risk and it cannot cover unlimited or higher than the statutory liability fixed under sub-section (2) of section 95 of the Motor Vehicles act. It was observed that the special agreement has to be arrived at between the insurance company and the insured and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. Now, in the present case there is no evidence to show that any separate premium was paid for the purpose of covering risk of the owner himself. Under the comprehensive policy, the owner can only claim reimbursement of damages suffered by the vehicle. This proposition has been accepted by the various courts all over the country including this court also. Now, in the present case there is no evidence to show that any separate premium was paid for the purpose of covering risk of the owner himself. Under the comprehensive policy, the owner can only claim reimbursement of damages suffered by the vehicle. This proposition has been accepted by the various courts all over the country including this court also. In this connection, a reference may be made to Karnataka High Court in the case of M. Akkavva v. New India Assurance co. Ltd. , 1988 ACJ 445 (Karnataka ). In that case, the vehicle in question was a goods vehicle and son of the owner of the goods vehicle was accompanying the goods of his father being carried in the vehicle and the vehicle met with accident due to the negligence of its driver. The question arosewhether the son of the owner of the vehicle is to be compensated. Their Lordships answered in negative that the owner of the vehicle who has the benefit of indemnity is himself not covered and his representative is in no better position unless he be an employee covered by the first proviso to section 95 (1) (b ). The idea behind this ratio was that the son is in no better position than the owner, i. e. , father. In that case, the son of owner of the goods vehicle was accompanying the goods and not as an employee. It was observed that"basically, a contract of motor insurance seeks to indemnify the owner of the vehicle against liability arising out of claims of third parties against the insured owner out of the use of the motor vehicle. A contract of insurance which stipulates to pay compensation for the death of the insured person himself cannot be said to be a contract of indemnity. If the owner of the vehicle, who has the benefit of indemnity is himself not covered by the policy, his representative, unless he be an employee covered by the first proviso to section 95 (1) (b), is in no better position in relation to the insurer's obligation or the absence of it". Similarly, in the case of Mathew koshy v. Oriental Insurance Co. Similarly, in the case of Mathew koshy v. Oriental Insurance Co. Ltd. , 1989 acj 21 (Kerala), the Kerala High Court took the same view that the right to receive compensation can only be against a person who is bound to compensate due to failure to perform legal obligation; compulsory insurance is to indemnify the owner of the vehicle from the liability, if any, but if the owner himself suffers an injury in an accident, he does not acquire any right to get compensation from the insurance company. In the case of United India Insurance co. Ltd. v. Lakshmi, 1990 ACJ 390 (Madras), the Madras High Court has held that the owner of the lorry or the insured having himself died in the accident, caused by his own driver and there being no liability on his part or on the part of his legal representatives, towards any third party, the insurance company's liability does not at all arise. A similar view has been taken by the Bombay High Court in the case of United India Insurance Co. Ltd. v. Kantabai, 1991 ACJ 22 (Bombay)and in that case, the vehicle was insured by the partnership firm and one of the partners was travelling in the jeep when the jeep met with an accident due to its rash and negligent driving and it was submitted that individuality of the partner is separate and distinct from the character of the firm and the insurance company should be held liable. The court answered in negative and held that the partner of the firm was the owner of the vehicle and the owner is not covered by the expression 'any person' or 'third party' appearing in section 95 (1) (b) (i) and, therefore, the liability has not been extended to include the risk to the owner by paying extra premium. It was also held that meaning of comprehensive policy is that the owner can claim reimbursement of the loss or damage to the vehicle or the liability of third party risk but not to himself. Similar view has been taken by Allahabad High court in the case of Oriental Fire and Genl. Ins. Co. Ltd. v. Shakuntala Devi, 1991 acj 177 (Allahabad) and it has been held that under section 95 (1) (b) of the Motor vehicles Act, what is covered is liability of third party and not insured himself. Similar view has been taken by Allahabad High court in the case of Oriental Fire and Genl. Ins. Co. Ltd. v. Shakuntala Devi, 1991 acj 177 (Allahabad) and it has been held that under section 95 (1) (b) of the Motor vehicles Act, what is covered is liability of third party and not insured himself. ( 11 ) ON survey of the aforesaid decisions, it becomes more than apparent that the insurance company only insures the liability arising out of the insured and it does not insure the insured. In the present case, though the policy was a comprehensive policy, but it did not cover the insured and as per section 147 (1), it clearly transpires that a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Therefore, the view taken by the learned Claims Tribunal for awarding compensation to the claimants of the deceased insured was totally against the provision of law and the Tribunal has completely misdirected itself. Therefore, the appeal filed by the insurance company being Misc. Appeal No. 774 of 1998, is allowed and the award passed by the Tribunal on 23. 4. 1998 is set aside. ( 12 ) SINCE the claimants are not entitled to any compensation; therefore, the appeal (Misc. Appeal No. 814 of 1998) filed by the claimants for enhancement of compensation is misconceived and the same is dismissed. The appeal (Misc. Appeal No. 58 of 1998) filed by the insurance company against the order dated 29. 8. 1997, with regard to no fault liability is concerned, the same is also allowed because of the fact that the insured himself has died in the said accident and when the insurance company is not liable to indemnify the insured, the insurance company is not liable to pay a sum of Rs. 25,000 towards no fault liability. The appeal filed by the insurance company against the interim award/order dated 29. 8. 1997 is allowed and the interim award/order passed by the tribunal dated 29. 8. 1997 is also set aside. 25,000 towards no fault liability. The appeal filed by the insurance company against the interim award/order dated 29. 8. 1997 is allowed and the interim award/order passed by the tribunal dated 29. 8. 1997 is also set aside. It will be open for the insurance company to make recovery of the aforesaid amount in accordance with law. Orders accordingly. .